On Wednesday, the Virginia state senator and former prosecutor accused of trying to ban oral sex mounted his defense.
“I feel vindicated,” an emotional state Sen. Thomas Garrett, R-Louisa, said after the Senate Courts of Justice Committee voted unanimously to send his update of the state’s “crimes against nature” statute to the Finance Committee for review. “It felt really good. We put a lot of blood, sweat and tears into this.”
For months, Garrett has been working on an issue that several prosecutors on Wednesday agreed is essential: revising anti-sodomy legislation that the Supreme Court and a federal appeals court have agreed is unconstitutional based on its blanket ban of oral and anal sex. Prosecutors have long relied on other parts of the 1950 statute to go after such crimes as an adult engaging in sex acts with a minor, bestiality and public sex acts.
“I’m not terribly concerned about what goes on in anybody’s bedrooms, as long as they’re consenting,” Garrett told the panel. That includes, he emphasized, “consenting teenagers.”
Part of the senator’s trouble was that when he first presented his revision, it wasn’t clear that consenting teenagers weren’t protected. He has since amended it, but not before publications as far away as London had written articles with headlines such as “Ultra-conservative senator in Virginia is proposing a bill that would make oral sex between teenagers a FELONY.”
Last year, then Attorney General Ken Cuccinelli unsuccessfully appealed a federal court ruling overturning a 2005 conviction under the sodomy statute. The U.S. Court of Appeals for the 4th Circuit ruled that the statute was unconstitutional, based on the Supreme Court’s decision in Lawrence v. Texas. Although the case before the appeals court involved a man and a teenage girl, Cuccinelli’s history as a cultural warrior made it easy to label him a crusader against sex in general and gay sex in particular.
Garrett got the same treatment — even though, as he said repeatedly, his bill was modeled very closely on 2004 legislation backed by liberal Democrats and opposed by social conservatives.
Garrett ran in 2011 as a “Cuccinelli conservative,” and Cuccinelli endorsed his campaign.
The new attorney general, Democrat Mark Herring, does not have a position on Garrett’s bill, a representative from Herring’s office said at Wednesday’s hearing. There are several appeals pending by people who are attempting to have convictions overturned based on court rulings that the Virginia statute is unconstitutional.
Some critics have said that under Garrett’s bill, engaging in sodomy, rather than intercourse, with a 15-year-old would unjustly result in a harsher sentence.
Garrett said his staff has looked into that issue and does not believe that it’s a problem. But he said he would support any legislation making clear that “sex acts are sex acts.”
Fairfax Commonwealth’s Attorney Raymond Morrogh, who traveled to the state Capitol in Richmond to defend the bill, said there is a “gap in the law” that needs an immediate fix. He said “the goal is to bring all sex acts by adults with children under a felony offense.”
The American Civil Liberties Union of Virginia spoke out against the bill initially, but it did not send anyone to the hearing to speak against it. President Claire Guthrie Gastañaga said she couldn’t comment until she saw the revised legislation.
Garrett said he thinks that’s a sign that advocates of gay rights have realized his true intent. Although he was clearly rattled by the attention, he said he never considered dropping the cause.
“We need to make sure we protect children,” he said, before adding hastily, “not from each other.”
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