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Cuccinelli appeals to court to uphold child predator law

If court does not intervene, nearly 90 sexual predators could be dropped from registry

7/1/2013, 10:29 a.m.
Attorney General Ken Cuccinelli has filed an appeal to the U.S. Supreme Court to save a tool law enforcers use ...

Attorney General Ken Cuccinelli has filed an appeal to the U.S. Supreme Court to save a tool law enforcers use regularly to prosecute child predators - Virginia's anti-sodomy law.

Cuccinelli is appealing the two-to-one March 2013 decision of the U.S. Court of Appeals for the Fourth Circuit inMacDonald v. Moose. William Scott MacDonald was 47 when he was convicted in 2005 of soliciting oral sex from a minor female. This was his second offense with a minor. The Fourth Circuit's March decision effectively struck down the Virginia law that was used to prosecute him. If the decision is allowed to stand, MacDonald will be released from probation; in addition, nearly 90 sexual predators may be eligible to be dropped from Virginia's sex offender registry.

Judge Albert Diaz, a 2009 Obama appointee, dissented from the Fourth Circuit's decision.

"The Fourth Circuit's decision threatens to undo convictions of child predators that were obtained under this law after 2003. It also takes away an important tool that prosecutors use to put child molesters in jail," Cuccinelli said."This has very real implications for public safety. If the Supreme Court doesn't overturn the Fourth Circuit's decision, nearly 90 sexual predators may be eligible to have their names removed from Virginia's sex offender registry."

"As we said when the Fourth Circuit rendered its decision in March, this has nothing to do with sexual orientation or private acts between consenting adults. In fact, the law can't be used for those purposes. This case is about using current law to protect a minor from a 47 year-old repeat sexual predator," said Cuccinelli. "Prosecutors use this important tool to obtain felony charges against adults who commit or solicit this sex act with minors. The law is only applied to offenses committed against minors, against non-consenting or incapacitated adults, or in public. It is not - and cannot be -- used against consenting adults acting in private."

The attorney general's petition to the Supreme Court notes that the Fourth Circuit's decision conflicts with decisions of other federal and state courts and is based on a flawed interpretation of the 2003 U.S. Supreme Court decision inLawrence v. Texas. In the Lawrence ruling, the Supreme Court held that Texas's law was unconstitutional as it applied to consenting adults in private. The court expressly noted that its decision did not speak to nonconsensual or public acts, or those acts committed against minors. In the Moose case, the Fourth Circuit ruled that even though the Supreme Court only ruled on one aspect of the law, Virginia's law should be stricken in its entirety.

Virginia courts have ruled that Virginia's law still can be constitutionally applied in cases involving minors. Judge Diaz dissented in the Moose decision, noting that Virginia courts' decisions were entitled to deference in habeas cases such as the Moose case.