Oral Sex! (But That’s Not The Interesting Part…)

NEWPORT NEWS – A Newport News [Va.] woman charged with a felony for receiving oral sex in a car is challenging a state law that prohibits certain types of sex between consenting adults.

A police officer says he found the 21-year-old woman in a parked car receiving oral sex from a man about 3 a.m. Jan. 29. Both were charged with a felony under the statute for crimes against nature.

….

Advocates who have fought against the state’s anti-sodomy laws say this case is unusual because the laws are seldom applied to heterosexuals.

I’m tempted to say that we take nature seriously here in Virginia, but I won’t. If you want to find out why the woman but not the man is challenging this law, then you’ll have to go read this article. I already warned you that the sex wasn’t the interesting part.

Here’s what’s interesting. The defendant’s attorney,

David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can’t regulate the sexual behavior of consenting adults in private.

As a result of the ruling, Lee argued that the state law has already been nullified, and felony charges against his client should be dropped.

Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied Lee’s motion at a preliminary hearing Monday. Lee said he would continue to argue his case when it goes to trial.

Not long ago SLATE’s Dahlia Lithwick argued that “congressmen shouldn’t get into the business of interpreting the Constitution,” an argument I criticized with some heat here. I wonder if she would also maintain, agreeing with Judge Sugg in this case, that interpreting the Constitution is not in the job description of lower court judges. Not surprisingly, the local prosecutor agrees even as she disagrees with Lithwick about whose job it is:

[Assistant Commonwealth's Attorney Jill] Schmidtke also said that the constitutionality of the statute “is a matter for the legislature.”

I’ve been living in Virginia for quite a while, but I hadn’t realized that we’d done away with judicial review.

UPDATE

See the posts by Radley Balko and Jacob Levy, both of whom got here first.

Say What? (7)

  1. linden April 1, 2004 at 2:45 am | | Reply

    I think Virginia’s going to win this one. Why? A parked car is not private imo.

  2. Chetly Zarko April 1, 2004 at 2:43 pm | | Reply

    Ahh. But the law itself is probably unconstitutional because it doesn’t prohibit all sex in public places easily, and probably doesn’t reference whether the crime “against nature” is illegal only in “public places.” Missionary position would have been legal in the same publicly parked car (of course, it depends largely on where the car was parked). Hence, the crime is not a crime against public sex; its a crime against the type of sex – making it a law that exceeds its legitimate reach. As such, I’d find the law illegal under a narrower doctrine than the ruling in Texas.

  3. linden April 1, 2004 at 3:17 pm | | Reply

    Well, this is what the article says:

    “David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can’t regulate the sexual behavior of consenting adults in private.”

    In private. This was in a parked car. Reasonable expectation of privacy? Doubt it.

  4. Chetly Zarko April 1, 2004 at 11:21 pm | | Reply

    But the law doesn’t say “no oral sex in public places,” it says no oral sex whatsoever because it is a violation of “nature’s laws”. Quite simply, the fact that the act was in public or not is not relevant to the law’s application.

    If the law itself is a violation of privacy; and has no clause that is based on the sound public policy of preventing sex in public; then the law is unconstitutional and should be unenforceable.

  5. Peter April 3, 2004 at 6:59 pm | | Reply

    As I learned in ConLaw class, the problem isn’t always what the laws are, what the case is, and the constitutionality of the whole mess, but how the lawyers involved put it. If the woman’s lawyer is going for the Texas case defence, which states that the law can’t touch acts of consenting adults _in private_, then the VA lawyers have the point they need to win the case, since it was in a car, and I don’t think anyone defines in a car as private.

  6. Stu April 5, 2004 at 12:48 pm | | Reply

    What’s missing in this story is a little inside baseball type information. I attended both college and law school in Virginia in the 60s and 70s and have continued to the present a few Virginia friendships made in those days. The police in Newport News, Norfolk and Hampton have been notorious for at least 40 years for rousting sailors, college kids, etc. I suspect that raising revenue is one reason, but the sheer delight of exercising the authority inherent in their positions is also hard to resist. Of course, I don’t know the circumstances of these particular arrests, but they have an all too familiar ring.

    As for the preceding comments, I think it pretty clear that the law does not regard those in a car parked in a public place have a reasonable expectation of privacy. And that is not all bad. The answer to the question “Why don’t we do it in the road?” is, not unreasonably, “Because we don’t wish to frigthen the horses.”

  7. generic meridia April 12, 2007 at 6:57 pm | | Reply

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