Well-Liked Art Teacher Charged Under Unconstitutional Law (Hypo)

[James_Madison]

Bricker well the statute most certainly does encompass his conduct. However, not because of narrow wording in the statute but because of the broad language of the statute. The language covers all same sex acts between two males, regardless of age. The lack of an age element in the statute makes it all encompassing. However, this may be an opportunity for the Virginia state supreme court to narrowly construe their statute as to make it comply with the constitutional interpretation of Lawrence v. Texas. One mode of interpretation used by the judiciary is where possible they will construe a statute in such a way as to cure its constitutional defects and thereby avoid addressing the constitutional issue. If the Virginia statute is too broad, then the Virginia judiciary could interpret the statute, if possible, in such a way as to cure its constitutional defects and still permit prosecution of the individual under the statute.

[John_Mace]

@Bricker

The other key element I changed in my hypo is that, in the real-life version, both the former student and the teacher are male.

I actually suspected that was the case.

You’re a lawyer, right? Can you clarify this whole thing about the CAN statute being viable for minors even though it was struck down (supposedly) for adults only. IANAL, but that just sounds wrong to me.

[Bricker]

You’re a lawyer, right? Can you clarify this whole thing about the CAN statute being viable for minors even though it was struck down (supposedly) for adults only. IANAL, but that just sounds wrong to me.

It’s an issue of first impression in Virginia, meaning that no court has addressed the question of whether the Crimes Against Nature law may be constitutionally applied to adult sexual contact with minors in light of Lawrence v. Texas.

Lawrence’s reasoning certainly suggests that the Virginia law would not survive a challenge by two adults. But it’s an open question as to whether or not it would survive this application.

• Rick

[Truth_Seeker]

I don’t think the issue is being framed quite correctly.

Everyone agrees that Lawrence made these kinds of laws unconstitutional when applied to consenting adults. So the issue is, is the legislature’s general intent to punish this behavior sufficient to allow enforcement only with respect to minors even though the law, as written, does not apply specifically to minors.

I think the answer is quite clearly “no.” For one thing, it has absurd results. The problem here is that the state legislature relied on outdated laws and got hoist by their own petard. If all “unnatural acts” are felonies, why bother to have sexual assault statutes covering the same conduct that apply only to minors? The problem is that what this teacher did is not, currently, illegal.

Think of it this way. It is unconstitutional for the state to punish adults for engaging in unnatural acts. So the teacher is free to engage in them. There may be, however, a window under Lawrence to enforce this law against the minor. As I understand the way the law is written, applying Lawrence, the conduct would be legal for the adult but illegal for the minor, sort of like a curfew. I suppose the state might be able to charge it as aiding and abetting or maybe conspiracy.

The point here is that this is absurd. When Lawrence came down, it struck down generally applicable laws that violated its holding. The legislature has got to go back and make its intent clear by enacting a specific law addressing minors if it wants to prohibit this conduct only for minors and not for adults.

[John_Mace]

@Bricker

Lawrence’s reasoning certainly suggests that the Virginia law would not survive a challenge by two adults. But it’s an open question as to whether or not it would survive this application.

OK, part of what was confusing me is not recognizing that we’re talking about two different states here. Some questions:

1. Would my original analysis have been correct if this crime had been committed in Texas?

2. When the SCotUS strikes down a certain state law, how are similar laws in other states handled? Just how “identical” do the laws have to be before they are automatically struck down? For example, if the SC says Texas can’t prevent blacks and whites from marrying, surely no other state can continue that practice, right? But it’s rare that laws in different states are exactly alike. I never thought about this before.

[Hamlet]

@Truth Seeker

The point here is that this is absurd. When Lawrence came down, it struck down generally applicable laws that violated its holding. The legislature has got to go back and make its intent clear by enacting a specific law addressing minors if it wants to prohibit this conduct only for minors and not for adults.

Actually, I beg to differ. I haven’t been able to do much research, but, scrubbing my brain on this issue, I think you’re wrong. When an appellate court finds a statute unconstituitonal as applied to a certain group, they are not striking down the entire statute as applied to everyone. There is a presumption that statutes are constitutional, and, if the statute has one application that is unconstitutional, it doesn’e mean the entire statute is struck down. It would certainly be more vulnerable to attack for vagueness or overbreadth, but courts are loathe to, and the Supreme Court in Lawrence I don’t think did, strike down every possible application of the statute. Now, I could be wrong, but IIRC there are a few cases out there that have upheld convictions for violations of sodomy laws by adults with child victims, even after the statutes were found unconstitututional as applied to married couples. Unfortunately, I’m not going to have a whole lot of time to search for it, but I do think I’m correct.

[Hamlet]

@Bricker

It’s an issue of first impression in Virginia, meaning that no court has addressed the question of whether the Crimes Against Nature law may be constitutionally applied to adult sexual contact with minors in light of Lawrence v. Texas.

• Rick

Take a look, if you get a chance, at Santillo v. Com., 517 S.E.2d 733 Va.App.,1999. If I am reading it correctly, which, after this week, may not be the best assumption to make, I think it holds that the crimes against nature statute, as applied to a minor victim, is allowable. I’m guessing that’s the case your courts would rely on when interpreting the statute in your teacher’s case. In Santillo, the court said:

In the instant case, appellant seeks to extend the recognized right to privacy to cover an individual who engages in heterosexual sodomy. However, under the circumstances of this case, we hold that appellant’s actions were not within the ambit of any constitutionally protected zone because they did not involve sexual relations between two consenting adults.

I think the idea expressed in your cite to the newspaper’s Op-Ed piece is wrong. Just because Lawrence struck down sodomy statutes as applied to consenting adults, does not mean the statute, or like statutes, cannot be applied to situations involving minors.

[Bricker]

@Hamlet

Take a look, if you get a chance, at Santillo v. Com., 517 S.E.2d 733 Va.App.,1999. If I am reading it correctly, which, after this week, may not be the best assumption to make, I think it holds that the crimes against nature statute, as applied to a minor victim, is allowable. I’m guessing that’s the case your courts would rely on when interpreting the statute in your teacher’s case. In Santillo, the court said: I think the idea expressed in your cite to the newspaper’s Op-Ed piece is wrong. Just because Lawrence struck down sodomy statutes as applied to consenting adults, does not mean the statute, or like statutes, cannot be applied to situations involving minors.

I’ve read Santillo thoroughly. However, given that Santillo quotes extensively from Bowers v. Hardwick, and relies upon the reasoning therein in reaching its result, that Bowers is no longer good law, I’m not so sanguine that Santillo is good law any more.

Moreover, Santillo doesn’t even reach the issue of consentual sodomy: it hangs its hat on the lack of consent from the sixteen-year-old victim:

Viewed in the light most favorable to the Commonwealth, the evidence established that appellant acted without the consent of the sixteen-year-old victim. Specifically, the victim testified she was “uncomfortable” with appellant’s advances and at one point she tried to “avoid the whole thing.” She indicated that she could “feel” what appellant was doing but that she was not looking at him. During the second encounter, the victim was not thinking about what appellant was doing; rather she “was just looking forward.” On two separate occasions, appellant instructed the victim not to tell anyone about what occurred.

Given the nature of the relationship of these parties and the attendant circumstances, we agree with the trial court’s determination that appellant’s actions constituted “unwanted, non-consensual contact” with the victim and that his actions do not reach the level of constitutional protection. Because we hold the evidence established that the relations in this case were non-consensual, we decline to decide the constitutionality of Code § 18.2-361, as it applies to heterosexual acts between two consenting adults.

• Rick

[Hamlet]

@Bricker

I’ve read Santillo thoroughly.

You’re one up on me.

@bricker

However, given that Santillo quotes extensively from Bowers v. Hardwick, and relies upon the reasoning therein in reaching its result, that Bowers is no longer good law, I’m not so sanguine that Santillo is good law any more.
Moreover, Santillo doesn’t even reach the issue of consentual sodomy: it hangs its hat on the lack of consent from the sixteen-year-old victim

• Rick

Oh, I agree that there is no clear precedent on this issue, but I think the Santillo case, as well as Paris show that it is highly unlikely that the teacher will be successful in arguing that Lawrence strikes down the entirety of the CAN statute. As the court said in Santillo:

Before considering this argument, we note that generally, a litigant may challenge the constitutionality of a law only as it applies to him or her. . . That the statute may apply unconstitutionally to another is irrelevant; one cannot raise third party rights.

I can’t see the court hearing the teacher’s case deciding that Lawrence decision bars the State from prosecuting the defendant under the CAN law. While I agree the Santillo court hung their hat mostly on the unconsenting nature of the sex, they also said:

In the instant case, as we have previously noted, appellant’s conduct was both “non-consensual” and not “acts between adults” and, therefore does not rise to a level of constitutional protection.

Maybe after this case is through, we can revive this thread (like your Bush wins one in the pit )and see what they ruled. That should only take another 2 years or so.

[Truth_Seeker]

But Hamlet, the problem with your reading – and I freely admit that I haven’t looked at the actual text of the statute itself – is that the law, when read in conjunction with Lawrence, makes it illegal for minors to engage in “CAN” but it makes it legal for adults. Bottom line here – There is now no law prohibitting adults from engaging in consensual CAN with anyone.

Now you can argue that minors can’t consent but that makes this a species of assault. Consent is irrelevant to this CAN statute and there is no way to read a consent element in.

So what are you left with? The law would bar minors from engaging in CAN – just as in many jurisdiction it bars them for having consensual sex, even with another minor. I guess you could use aiding and abetting or conspiracy, but I’m not sure that passes the laugh test.

[Hamlet]

@Truth Seeker

But Hamlet, the problem with your reading – and I freely admit that I haven’t looked at the actual text of the statute itself – is that the law, when read in conjunction with Lawrence, makes it illegal for minors to engage in “CAN” but it makes it legal for adults. Bottom line here – There is now no law prohibitting adults from engaging in consensual CAN with anyone.

Now you can argue that minors can’t consent but that makes this a species of assault. Consent is irrelevant to this CAN statute and there is no way to read a consent element in.

So what are you left with? The law would bar minors from engaging in CAN – just as in many jurisdiction it bars them for having consensual sex, even with another minor. I guess you could use aiding and abetting or conspiracy, but I’m not sure that passes the laugh test.

For references sake, Here is the statute in question. Now, the Supreme Court’s ruling in Lawrence says that it is unconstitutional to enforce sodomy laws against same sex partners. Cases decided before Lawrence established that it is unconstitutional to enforce sodomy laws against married couples and then, later, to unmarried couples.

What the Supreme Court did not do, however, is invalidate the statute as a whole. They held it was unconstitutional as applied to same sex partners. Now this does not mean that all sodomy laws in the nation are struck down in their entirety. They held that there was no rational basis for the statute to be applied to consenting adults. However, there is still a rational basis, and the law can still be enforced, against adults having sex with minors.

Your assumption, TruthSeeker is that by holding that two consenting adults cannot be convicted of sodomy means that one consenting adult cannot be convicted if the other person is a minor. That’s just not the case. Your “bottom line” is just plain wrong. An adult has the right to have CAN with another consenting adult, but not to have the right to have CAN with a minor.