Moments after the seventeen-year-old girl returned to the vehicle, MacDonald made an indecent request - oral sodomy. She refused, and returned him to the Home Depot parking from whence he came.

One of his convictions was for solicitation, which itself requires a predicate felony. That felony was sodomy. The statute reads:

The path for MacDonald was arduous. It was also soon revealed that he had been convicted on a prior occasion for four similar acts with a sixteen and seventeen year-old. Though most of us would label his conduct reprehensible, he might argue that the purpose of his conduct was to cure the Commonwealth of an unconstitutional law that criminalized private sexual conduct.

“If any person … carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]”

The state courts did not look, or decide, upon the merits of his cases favorably. They denied his facial challenge to the statute in both the prior convictions (which reached the Virginia Supreme Court) and in the present case.

The general consensus was that he lacked standing for a facial challenge, as the statute was constitutional as applied to him (the victims were all minors). Because he was not similarly situated to the person who engaged in sodomy with a consenting adult, he couldn’t fight their battle.

The Fourth Circuit took a different approach. They held that the statute was unconstitutional as applied because it was unconstitutional on its face.

If one dives deeper into Lawrence v. Texas, they will notice that the court explicitly repudiated their prior decision in Bowers, including the Georgia sodomy statute challenged in that case. The Georgia statute is nearly word-for-word indistinguishable from the Virginia statue in this case.

Furthermore, the state courts’ attempt to save this statute and reform it to apply to minors is constitutionally suspect. The statute does not explicitly or implicitly mention “minors”. In fact, a different statute explicitly addresses sodomy with those fifteen years of age and younger. The choice of whether to perform sodomy on a 17-year-old a felony is the province of lawmakers, not judges.

The court quotes Ayotte in warning against trimming overbroad statutes:

What’s the end result? The Virginia sodomy statute is facially invalid in light of Lawrence. MacDonald’s habeas petition is granted.

“[I]t would certainly be dangerous if the legislature could set a net largeenough to catch all possible offenders, and leave it to the courts to step inside to announce to whom the statute may be applied. This would, to some extent, substitute the judicial for the legislative department of the government.”

  • MacDonald v. Moose (Fourth Circuit Court of Appeals)
  • Mann Fights the Man on Unfair Crack Sentence (FindLaw’s Fourth Circuit Blog)
  • Sex Offender Registration Trumps Juvenile Offender Anonymity (FindLaw’s Fourth Circuit Blog)

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