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.