The Lawletter Vol 38 No 9
Suzanne Bailey, Senior Attorney, National Legal Research Group
The U.S. Supreme Court's recent denial of the Commonwealth of Virginia's petition for writ of certiorari in MacDonald v. Moose, 710 F.3d 154 (4th Cir.), cert. denied, 82 U.S.L.W. 3029 (U.S. Oct. 7, 2013), reminds us that 10 years after the landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that it is a violation of the Due Process Clause to prohibit two individuals of the same sex from engaging in consensual sexual conduct, courts are still grappling with the nature of what consensual sexual activity is protected from criminal prosecution. While Lawrence specifically addressed consensual homosexual sexual conduct, the Court's adoption of language from Justice Stevens's dissent in Bowers v. Hardwick, 478 U.S. 186 (1986), clarified the sweeping nature of the Court's ruling:
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.
Lawrence, 539 U.S. at 577-78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).
The above-quoted excerpt from Lawrence paved the way for decisions invalidating state statutes criminalizing sexual intercourse between unmarried adult heterosexuals. See, e.g., Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) (because Virginia fornication statute was an unconstitutional due process violation of an unmarried individual's liberty interest in engaging in private intimate conduct and maintaining personal relationships without governmental interference, the rule precluding a party consenting to, and participating in, an illegal act from recovering damages from another participant did not apply to bar the plaintiff's claims against the defendant for injuries arising from herpes allegedly contracted as a result of sexual intercourse). Likewise, Lawrence has been relied upon to invalidate statutes prohibiting consensual acts of sodomy between heterosexual adults. See MacDonald, 710 F.3d 154.
However, the Lawrence decision was not without its limits. The Court observed: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution." 539 U.S. at 578. Accordingly, courts have refused to find that Lawrence forbids prosecution for incest, see, e.g., People v. McEvoy, 154 Cal. Rptr. 3d 914 (Ct. App. 2013), even if the alleged victim is a consenting adult, see, e.g., Lowe v. Swanson, 663 F.3d 258 (6th Cir. 2011). Similarly, courts have not found Lawrence to be a bar to prosecutions for solicitation to commit sexual acts in a public place, see, e.g., Singson v. Commonwealth, 621 S.E.2d 682 (Va. Ct. App. 2005), or for prostitution, see, e.g., State v. Romano, 155 P.3d 1102 (Haw. 2007). Lawrence did not render unconstitutional a Kansas statute making sexual relations between a teacher and a student a crime, even though the
student, who was still in school, was 18 years old at the time and had consented to the sexual conduct. State v. Edwards, 288 P.3d 494 (Kan. Ct. App. 2012); see also State v. Fischer, 199 P.3d 663 (Ariz. Ct. App. 2008) (affirming conviction of defendant for sexual conduct with a minor and conspiracy to commit sexual conduct with a minor and rejecting defense argument that defendant had fundamental right under Lawrence to engage in sexual relations with his "celestial wife" or one of his plural wives).
As the prosecution learned in MacDonald, however, the mere fact that the alleged victim is a minor does not take the act out of the protective sphere of Lawrence if the offense charged is not based on the victim's age. In that case, which came before the Fourth Circuit Court of Appeals on appeal of the denial of a petition for writ of habeas corpus, the petitioner was convicted after a bench trial of the misdemeanor of contributing to the delinquency of a minor and of felony criminal solicitation. The criminal solicitation conviction was treated as a felony by virtue of the commission of a predicate felony, in this case, sodomy, resulting in the petitioner's obligation to register as a sex offender. Although the Virginia Code creates sexual offenses based on the age of the victim, in this case, the "anti-sodomy [predicate offense] provision [did] not mention the word 'minor,' nor [did] it remotely suggest that the regulation of sexual relations between adults and children had anything to do with its enactment." 710 F.3d at 165. "[A]lthough the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so." Id. It was not for the trial court to revise the statute to limit its applications in cases in which the victim was a minor. Because the statute was facially unconstitutional under Lawrence, the Fourth Circuit reversed and remanded for an award of habeas corpus relief.
Lawrence makes it clear that the State cannot criminalize private consensual sexual relations between adults. While it may be appropriate for a state legislature to protect a certain class of victim, even in the case of consensual acts, MacDonald demonstrates that the legislature must do so explicitly in order for the prosecution to fall outside of the rule in Lawrence. At a time when states are increasing the offenses requiring sex offender registration and some states are making it more difficult, if not impossible, to be removed from the sex offender registry, it is well worth considering whether Lawrence applies to bar prosecution or reduce the charges.