From the Archives: Crimes Against Nature Law Allows Virginia Police To Target Gays (2001)

This article, based upon survey research I did with Rasmussen Research for Virginians for Justice (later Equality Virginia), was originally published in the Free Lance-Star of Fredericksburg, Virginia, on February 9, 2001.  It preceded the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which invalidated the remaining anti-sodomy laws in the United States, including Virginia's "Crimes Against Nature" statute (Section 18.2-361 of the Virginia Code).

Crimes Against Nature Law Allows Virginia Police To Target Gays

Richard E. Sincere, Jr.

CHARLOTTESVILLE - When Republicans discuss the proper role of government, most agree that it should be low-cost, limited in scope, and nonintrusive in the lives of citizens.

Rank-and-file Republican voters, for the most part, stand by the words of the late U.S. Sen. Barry Goldwater:

"I have little interest in streamlining government or in making it more efficient, for I mean to reduce its size. My aim is not to pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution, or that have failed in their purpose, or that impose on the people an unwarranted financial burden.

"I will not attempt to discover whether legislation is ‘needed’ before I have first determined whether it is constitutionally permissible. And if I should later be attacked for neglecting my constituents’ ‘interests,’ I shall reply that I was informed their main interest is liberty and that in that cause I am doing the very best I can."

Do Virginia’s Republicans live up to this Goldwaterite ideal? Not always, but the impulse remains. Evidence for this is found in a recent poll from an unlikely source on an unlikely topic.

On Jan. 16 and 18, Rasmussen Research, an independent polling organization, conducted a statewide survey to determine knowledge and attitudes about Virginia’s Crimes Against Nature statute. This statute forbids certain intimate sexual activity, even in private and even for married couples. To be blunt, the law prohibits oral sex for any Virginian, whether they are gay or straight, married or single.

The law is enforced selectively. It is used to target gay men in public places who discuss having sex. It is used as a fallback when prosecutors cannot prove that a sexual assault has taken place, so the alleged perpetrator is accused and convicted of consensual sodomy instead.

And it is used as a pretext to deny child custody to gay or lesbian parents - for example, in the case of Richmonder Sharon Bottoms, which achieved nationwide infamy when the government forcibly took her son, Tyler, from her because she is a lesbian.

The Rasmussen Research poll found that, across the board, Virginians want the CAN law repealed. Large majorities in almost every conceivable category say they want to see the law eliminated, that they want their legislators to vote for repeal, and that legislators who support repeal will not be adversely affected at the ballot box.

This is true for Democrats, Republicans, and independents; it is true for men and women; it is true for whites and African-Americans.

In this random survey, Republicans showed clear consistency in their view that government should stay out of the private lives of citizens.

Virginia State Capitol in Richmond

Asked "Should it be against the law for an unmarried man and an unmarried woman to have sex in the state of Virginia?" 67.4 percent of Republicans answered "no," compared to 71.1 percent overall.

Asked "Should it be against the law for a married couple to have oral sex in the privacy of their own home?" 78.9 percent of Republicans answered "no" (81.7 percent overall).

Asked "Currently, according to Virginia law, it is illegal for consenting adults to have oral sex in the state of Virginia; a proposal has been made to eliminate the Virginia law; should the Virginia law be eliminated?" 61.4 percent of Republicans answered "yes" (65.2 percent overall).

Now, some members of the General Assembly say privately that they would support the repeal of the CAN law, but that they would have hell to pay on Election Day if they did. This is simply not true.

Survey participants were asked:

"Suppose your representative in the House of Delegates or the State Senate voted to eliminate the Virginia law. Would that make you more likely to vote for that person, less likely to vote for them, or would it have no impact on your vote?" Overall, 82.9 percent of Virginians said that they would either be more likely to vote for that representative, or it would have no impact on their vote; 83.5 percent of Republicans answered the same way, as did 77.5 percent of Democrats.

In other words, state legislators who vote to repeal the Crimes Against Nature law will have little or nothing to worry about in their re-election bids. The fear they cite is a red herring.

Republicans are part of a broad "leave us alone" coalition that wants the government to stop breathing down our necks. As speaker of the House of Delegates Vance Wilkins told The Washington Post, "It’s simply a matter of individual liberty versus not having the government be a nanny." We don’t trust the government to run our businesses, and we certainly don’t trust it to run our sex lives.

The spirit of Barry Goldwater lives on in Virginia.

RICHARD SINCERE serves on the national committee of the Republican Liberty Caucus.