Protecting Kids From Predators Doesn't Require Bigotry

We can still regulate "who" and "where."

Some Virginia public officials seem to have trouble grasping an extremely simple concept: Protecting children from sexual predation does not require drawing distinctions among different types of sex. Had he emphasized that point more, state Sen. Tom Garrett might have spared himself a great deal of grief.

Garrett recently introduced legislation to amend and re-enact Virginia’s notorious crimes-against-nature statute, which court rulings have rendered a nullity. The bill renews the prohibitions against oral or anal sex with minors or in public, while stipulating that such acts between consenting adults in private do not violate the law.

This marks a considerable improvement over the position taken by Ken Cuccinelli, who believes homosexuality “brings nothing but self-destruction, not only physically but of [the] soul” and that “homosexual acts...should not be accommodated in government policy.” As attorney general, he doggedly defended the state’s old, comprehensive ban against certain sexual acts—which felonized even those intimacies between married straight couples.

Cuccinelli tried to maintain that courts could sustain Virginia’s law even in light of the Supreme Court’s 2003 ruling in Lawrence v. Texas if they interpreted it as applying only to cases of adults preying on minors. That did not fly, for the obvious reason: It’s not what the law said. He might as well have asked the court to read a law outlawing all hats in church as forbidding only lime-green fedoras.

The courts shot him down. But while Garrett’s bill is an improvement, it still has a lot of problems, as others have pointed out at length. Virginia law lets 17-year-olds marry. But if those 17-year-olds then had oral sex, under Garrett’s original bill they would be committing felonies. Genital sex between an adult and a 17-year-old remains a misdemeanor, but merely to solicit oral sex with a 17-year-old would be a felony.

Moreover, public sex acts would be treated differently depending on what sort of conduct they involved: as felonies for “crimes against nature,” but misdemeanors otherwise. As the Virginia ACLU’s Claire Guthrie Gastañaga told ThinkProgress, Garrett’s original measure “leaves in place discriminatory treatment and doesn’t address the underlying problem that LGBT people are treated differently than folks that have other kinds of sex.”

Consequently, Garrett has caught unholy heck. “This Guy Wants to Outlaw Oral Sex Between Teenagers in Virginia,” screamed a Huffington Post headline. “Apparently, there’s an emergency in the great state of Virginia,” wrote The New Civil Rights Project. “High school students are having too much oral and anal sex, and it’s time to start throwing them in prison for it—making them felons for the rest of their lives.” Garrett’s office has been slammed with nastygrams.

But while the legal critique of the legislation is spot on, the hyperventilating personal criticism has been unfair. Although he has called himself a “Cuccinelli conservative,” Garrett is not a Cuccinelli clone. In fact, he modeled his legislation after a proposal introduced nine years ago (two years after Lawrence) by former Democratic state Sen. Patricia Ticer. When she announced her retirement three years ago, The Washington Post described Ticer as “one of the senate’s most liberal members.”

To be precise, Garrett didn’t simply model his legislation after Ticer’s. He copied it—almost word-for-word. All the flaws of his bill, then, were embedded in hers as well. It’s a fair bet she didn’t draft her legislation with the intent of stigmatizing homosexuality and sending teenagers to prison. Indeed, her bill died in committee along party lines—with Democrats supporting it and Republicans, including social conservatives such as Mark Obenshain, opposed. Maybe we should give Garrett the benefit of the doubt and assume he didn’t harbor such an intent either.

“I tried to draft the simplest bill possible,” Garrett wrote in an email to GayRVA.com. “I would be open to amendment, and may even amend it myself, to say that any act is only a crime when one participant or solicitor is an adult, and the other a minor. Honestly, the idea of outlawing acts between minors isn’t something I had contemplated....I genuinely thought opposition to this bill would come from the right, not the left.” Just as it did with Ticer’s.

Garrett has now updated his bill so that it is now not just close to Ticer’s bill but identical to it. If it clears the Senate, then the trick will be to get it past the social conservatives in the House of Delegates—though it’s not clear why even that is really necessary. Like they say, this isn’t rocket surgery: (1) Grown-ups should not prey on kids, and (2) sex belongs in the bedroom, not on the boardwalk. Virginia can easily regulate those two questions of “who” and “where” without ever bringing up the question of “how.”

This column originally appeared in the Richmond-Times Dispatch.

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  • Fist of Etiquette||

    But while the legal critique of the legislation is spot on, the hyperventilating personal criticism has been unfair.

    Bullshit. He should be mocked for not understanding the law he was trying to foist on his state. Fuck him and all other lazy ass legislators. They deserve all scorn that is heaped upon them.

  • Loki||

    They have to pass laws before they can find it what's in them. Reading them beforehand? Pffft, whatever!

  • Agammamon||

    Unintended consequences are not necessarily unforeseen consequences.

  • ||

    Bullshit.

    Agreed, all around. The critique has been anything but 'spot on' but the criticism is deserved. He's too lazy to write the law simply and not lazy enough to leave corner cases of unnecessary laws to the branch of gov't created to interpret the law.

  • Another David||

    Protecting kids from Predators is nearly as important as protecting them from xenomorphs.

  • Floridian||

    New rule: if your law is so dumb as to be repealed by popular vote, you lose your seat for life. That would keep the greedy bastards from passing any bill without thinking it through.

  • John||

    Why does there need to be a special section on oral sex? The law is null and void right now. Yet, I am pretty sure adults who have sex with minors in Virginia are still placing themselves in serious legal jeopardy.

    Would people feel better if the older guy just banged their 13 year old daughter but didn't get a blowjob?

  • ||

    Would people feel better if the older guy just banged their 13 year old daughter but didn't get a blowjob?

    Evidently, at least some people would.

  • SugarFree||

    If the Virginia legislature doesn't have anything better to do than this, send them home.

  • John||

    Either that or people are out molesting children and getting away with it and they are too stupid to write a law to stop it.

    I don't think that is happening. So what they are doing is debating angels on the head of a pin.

  • JD3||

    Off topic question---but I promise to add something of substance after my inquiry has been addressed...oh and I don't mean an "Obama Promise" either. I will actually follow through and write a comment of substance which hopefully will add to this debate.
    What is the "#" sign to the right of the date and time?

  • SugarFree||

    It is a link to the comment itself. So if you want to send someone directly to that comment rather than the whole thread, mail them the target of that link.

  • JD3||

    Thank you SugarFree.

    Back to the article--I find the whole situation absurd and it seems obvious, to me at least, that adults shouldn't engage or attempt to engage in sexual acts with kids. Furthermore, having sex on a park bench, as tempting as that sounds--should be a social "no-brainer". You can't bang in public. End of story.
    I think people are taking Virginia's iconic travel and tourism slogan a little too literally.

  • SugarFree||

    It is already a crime for someone over 18 to engage in a sex act with someone over 18 in VA, but with lower penalties for 15-17.999. It's the focus on sodomy that is what's so strange. If he wants to enhance the penalties on 15-17.999, then write that bill.

    All it looks like he wants to do is punish gay and hetero non-vaginal sex acts more harshly by singling them out.

  • PD Scott||

    It is already a crime for someone over 18 to engage in a sex act with someone over 18 in VA,

    I think you meant under, unless every sexually active adult in VA is a sex criminal. Which is possible.

  • SugarFree||

    Yes. We need a preview button, dammit!

  • Agammamon||

    Well, maybe in *West* Virginia. . .

  • WTF||

    I think people are taking Virginia's iconic travel and tourism slogan a little too literally

    "Virginia is for lovers fuckers.

  • JD3||

    Eloquently stated.
    :/

  • Loki||

    ...But only vag fuckers.

  • Eduard van Haalen||

    "he modeled his legislation after a proposal introduced nine years ago (two years after Lawrence) by former Democratic state Sen. Patricia Ticer. When she announced her retirement three years ago, The Washington Post described Ticer as “one of the senate’s most liberal members.”"

    Ouch!

  • Eduard van Haalen||

    "The courts shot [Cuccinelli] down."

    One court, not courts plural. The Virginia Supreme Court upheld Cuccinelli position, but the 4th Circuit overruled the Virginia Supreme Court by a 2-1 vote, with an Obama-appointed judge dissenting. The 2-judge majority said that the Virginia Supreme Court was not only wrong, but that it egregiously misapplied U.S. Supreme Court precedent. The Obama-appointed dissenter pointed out that the federal circuit courts aren't courts of appeals to correct errors by state supreme courts, and on questions where there are legitimate disputes over the meaning of U.S. Supreme court precedents, the federal circuit judges should defer to state high courts. The Virginia Supreme Court basically rewrote the sodomy statute to exempt the conduct legalized in the Lawrence v. Texas case, and there was nothing is US Supreme Court precedent clearly ruling out such rewriting.

  • BrielleYousifage||

    my neighbor's aunt makes 68 dollars/hour on the laptop. She has been out of a job for nine months but last month her pay check was 15377 dollars just working on the laptop for a few hours. read the full info here

    ++++++++++++++++++++++++++
    http://www.tec30.com
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  • Agammamon||

    “I would be open to amendment, and may even amend it myself, to say that any act is only a crime when one participant or solicitor is an adult, and the other a minor

    Or, you know, you could have just written that in plain English into the bill in the first place.

  • PaulW||

    I pretty much agree with this article. Our system lacks a thorough vetting process and it is not so much the fault of certain individual legislators like the guy above, but a problem with the fact that our media tends to take the rosiest outlook rather than apply Murphy's Law to anything.

    Can you imagine if we had a real media that would vet legislation, if not from a libertarian view, at least from a utilitarian point of view?

  • Ymmarta||

    How can you be "bigoted" against a sex act?

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