Mark Rieber—Senior Attorney, National Legal Research Group
In an unusual case, and one apparently of first impression, the Virginia Court of Appeals has very recently upheld the constitutionality of the state's statute prohibiting bestiality. Va. Code Ann. § 18.2-361(A); Warren v. Commonwealth, No. 2086-17-3, 2019 WL 189386 (Va. Ct. App. Jan. 15, 2019). The defendant in Warren was convicted of soliciting another person to "carnally know a brute animal or to submit to carnal knowledge with a brute animal" in violation of Va. Code Ann. §§ 18.2-361(A) and 18.2-29 (criminal solicitation). The evidence against the defendant included videos of the prohibited activities. The defendant argued that the bestiality statute was unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), because the activities at issue amounted to nothing more than private sexual conduct of consenting adults. The court construed the defendant's claim as a right to engage in bestiality, and rejected such a right finding that bestiality was a crime at common law and has been criminalized in Virginia since at least 1792. The court rejected the attempt to equate private sexual acts among consenting adults with sexual acts between humans and animals. The court further found that the bestiality statute was rationally related to legitimate state interests of prohibiting cruelty to animals and protecting public health and did not intrude upon a fundamental right. Accordingly, the court upheld the constitutionality of the bestiality statute and affirmed the defendant's conviction.