Ken Cuccinelli may have lost his bid to be governor of Virginia, but the dream lives on. And by “the dream,” I mean the hope that one day, Virginians, at least some of them, will be subject to arrest and imprisonment for private, consensual oral and anal sex. Cuccinelli fought valiantly, if ineffectively, both as a state legislator and as attorney general, to reinstate an old Virginia law that classified consensual oral and anal sex as criminal behaviors. Now, Republican state legislator Thomas Garrett, a self-described “Cuccinelli conservative,” is trying yet again to ban the kinds of consensual sex that don’t make babies. This time, however, he’s narrowed the bill only to ban it for teenagers, presumably hoping that it’s a little easier to get people to pass laws attacking those who haven’t reached voting age yet.
To be completely clear, this is not a bill banning sex between adults and minors, despite Garrett’s unconvincing assertion that this is his only intention. There are already laws in Virginia that cover that: The age of consent is 15, and, in addition, it’s a misdemeanor in Virginia for an adult to have sex with someone between the ages of 15 and 18. What this law would do is make it more criminal for an adult to have oral sex with a 15- to 17-year-old than vaginal intercourse, and, of course, it would make it illegal for two teenagers who are dating each other to have oral or anal sex with each other. But not, notably, vaginal intercourse. That would remain perfectly legal for teenagers. Legal blogger Eugene Volokh got a little sarcastic about the proposed law:
So if two 17-year-olds are choosing whether to have oral sex or genital sex, the law would push them towards the form of sex that is more likely to transmit disease, and more likely to cause unwanted pregnancy. Genius.
It all depends on your point of view. If you think that the state should put a priority on public health, then yes, it’s idiotic to craft laws that use the threat of criminal prosecution to encourage kids to engage in higher-risk forms of sex. However, if you think that sex is nasty behavior that should be punished as much as possible, then it makes more sense that you’d want to write laws that maximize the negative consequences for having it. In addition, if you’re an anti-gay bigot, then banning all kinds of sex acts except the one that only heterosexual couples can perform might also make sense to you. So, while it’s entirely possible that Garrett is an idiot who hasn’t considered the public health drawbacks to his proposed law, we cannot discount the possibility that he’s just way too obsessed with other people’s private sexual choices and also anti-gay. Either way, however, I think we can all agree that he shouldn’t be writing legislation.
