COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Overton
Argued at Richmond, Virginia
WILLIAM SCOTT McDONALD, A/K/A
WILLIAM SCOTT MacDONALD
OPINION BY
v. Record No. 1180-05-2 JUDGE JAMES W. HALEY, JR.
JUNE 13, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
James F. D’Alton, Jr., Judge
Terry Driskill for appellant.
William E. Thro, State Solicitor General (Judith Williams Jagdmann,
Attorney General; D. Mathias Roussy, Jr., Associate State Solicitor
General, on brief), for appellee.
William Scott McDonald (appellant) appeals his conviction in a bench trial of four counts of
sodomy in violation of Code § 18.2-361(A). His only contention is that Code § 18.2-361(A) is
unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment.1
Finding that the statute, as applied, does not violate the Constitution, we affirm.
I.
Facts
As appellant does not challenge the sufficiency of the evidence against him, only a brief
discussion of the facts is necessary. On December 31, 2002 and again on April 27, 2003, appellant
and L.F. engaged in private, consensual sexual intercourse and oral sodomy, as defined by Code
1
At oral argument, appellant also presented an equal protection argument. However, as
he failed to present this argument in his writ petition or his brief, we will not consider it. Rule
5A:20; Parker v. Commonwealth, 42 Va. App. 358, 373, 592 S.E.2d 358, 366 (2004).
§ 18.2-361(A). Appellant was forty-five years old at the time of the first encounter and forty-six at
the time of the second, and L.F. was sixteen years old at the time of both encounters. Then, in June
2004 and again in August 2004, appellant participated in private, consensual sexual intercourse and
oral sodomy with A.J. A.J. was seventeen years old at the time of both encounters, while appellant
was forty-seven. After the prosecution rested its case and again after the defense rested, appellant
moved to strike, claiming that Code § 18.2-361(A) is unconstitutional. The trial court denied both
motions and convicted appellant of all counts. Appellant then appealed to this Court.
II.
Analysis
Neither party disputes the timing of these encounters; what acts took place then; that the
female participants were ages sixteen and seventeen, respectively; or that Code § 18.2-361(A)
clearly prohibits the conduct. The only question presented on appeal is if Code § 18.2-361(A)
violates the Due Process Clause of the Fourteenth Amendment. Appellant challenges the
constitutionality of the statute both on its face and as applied to him.
We review arguments regarding the constitutionality of a statute de novo. Shivaee v.
Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (citing Wilby v. Gostel, 265 Va. 437, 440,
578 S.E.2d 796, 798 (2003); Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631,
561 S.E.2d 663, 667 (2002)), cert. denied, 126 S. Ct. 626 (2005). Furthermore,
We are guided by the established principle that all acts of the
General Assembly are presumed to be constitutional. In applying
this principle, we are required to resolve any reasonable doubt
regarding the constitutionality of a statute in favor of its validity.
. . . [W]e will declare a statute null and void only when it is plainly
repugnant to a state or federal constitutional provision.
In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003) (internal citations omitted).
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A.
Facial Challenge
Appellant contends that Code § 18.2-361(A) is facially unconstitutional because it bans
private, consensual sodomy between adults. In Lawrence v. Texas, 539 U.S. 558 (2003), the
Supreme Court held that the right to liberty under the Due Process Clause of the Fourteenth
Amendment rendered invalid a Texas law prohibiting homosexual sodomy. In reaching that
decision, the Court held that a state may not criminalize such sexual conduct when it is private,
non-remunerative, and engaged in between mutually consenting adults. Id. at 578.
We note, however, that a party “has standing to challenge the constitutionality of a statute
only insofar as it has an adverse impact on his own rights.” County Court of Ulster County v.
Allen, 442 U.S. 140, 154-55 (1979). In Singson v. Commonwealth, 46 Va. App. 724, 734, 621
S.E.2d 682, 686 (2005), we applied that language to a facial challenge to Code § 18.2-361(A) under
the Due Process Clause and held that only an as-applied challenge was appropriate. We continue to
hold, as previously stated in Singson, that nothing in Lawrence or the Supreme Court of Virginia’s
opinion in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), facially invalidates Code
§ 18.2-361(A). 46 Va. App. at 737, 621 S.E.2d at 688. As was the case in Singson, therefore, we
will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.
See also Tjan v. Commonwealth, 46 Va. App. 698, 621 S.E.2d 669 (2005) (citing Singson as
preventing a facial challenge to Code § 18.2-361(A) on due process grounds).
B.
As-Applied Challenge
Appellant maintains that Code § 18.2-361(A) is unconstitutional as applied to him because
Virginia has established fifteen as the age of majority for consensual sexual acts and that, therefore,
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his oral sodomy with A.J. and L.F. was consenting behavior between adults entitled to due process
protection under Lawrence.
Appellant cites the interaction of three different statutes to build his case. Code
§ 18.2-361(A), at issue in this case, reads, in pertinent part, “A. If any person . . . carnally knows
any male or female person . . . by or with the mouth, or voluntarily submits to such carnal
knowledge, he or she shall be guilty of a Class 6 felony . . . .” This provision, then, serves to
outlaw the behavior at issue in this case between any parties, regardless of age or consent. Code
§ 18.2-63 prohibits the “carnal knowledge” of a child either thirteen or fourteen years old. The
statute specifically includes within the term “carnal knowledge” oral sodomy in the manner
present in this case. The third statute, Code § 18.2-371, declares that when a person eighteen or
older “engages in consensual sexual intercourse with a child 15 or older not his spouse” that
person has committed a misdemeanor. (Emphasis added).
Appellant contends that these statutes establish an age of consent of fifteen for sexual
behavior in Virginia and that, therefore, sodomy involving people fifteen and older should be
viewed as no different from sodomy involving those eighteen and older. In support, he notes that
Code § 18.2-371 specifically refers to “consensual sexual intercourse,” thus establishing both
1) people fifteen and older can consent to intercourse and 2) the statute does not apply to
sodomy. He also notes that Code § 18.2-63 bans all intercourse and sodomy involving children
younger than fifteen. Finally, he points out that Code § 18.2-361(A) has no age limitation
whatsoever. Thus, for consent purposes, anyone age fifteen and older is an “adult” in Virginia
with regard to sexual behavior. Drawing on this reasoning, appellant cites Lawrence for its
protection of private, consensual behavior between adults as establishing the unconstitutionality
of Code § 18.2-361(A) as applied to him.
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Appellant errs, however, in his interpretation of the statutes as defining “adult.” The
Supreme Court of Virginia has established that determining the age of majority is within the
power of the legislature. Mack v. Mack, 217 Va. 534, 537, 229 S.E.2d 895, 897 (1976). While
Code § 18.2-371 allows for people aged fifteen to seventeen to consent to sexual intercourse, the
statute itself still refers to those people as “children.” Additionally, Code §§ 1-203, 1-204, and
1-207 together define “adult” as a person aged eighteen or more, unless a statute specifically
provides otherwise. Code § 18.2-361(A) does not change this standard definition of “adult.”
Therefore, appellant’s equation of the ability to consent to sexual intercourse with being an
“adult” fails.2
Other jurisdictions presented with a similar argument, although in different contexts,
have reached the same conclusion. In United States v. Bach, 400 F.3d 622, 629 (8th Cir. 2005),
the Eighth Circuit rejected the argument that child pornography was protected under the
reasoning of Lawrence when the child at issue was over the age of consent to engage in the
depicted behavior. See also United States v. Scherr, 400 F. Supp. 2d 843, 850 (D. Md. 2005)
(adopting the reasoning of Bach). Similarly, the Supreme Court of Nebraska held that the
Lawrence holding clearly does not apply to children, leaving states free to define people under
age eighteen as children. State v. Senters, 699 N.W.2d 810, 817 (Neb. 2005).
Because Virginia still considers people aged sixteen or seventeen to be children, we must
determine whether Code § 18.2-361(A) can constitutionally be applied to acts between an adult
and a child, rather than between adults, as appellant wishes. Viewed in this posture, appellant’s
challenge necessarily fails.
2
Furthermore, the distinction between Code § 18.2-63 and the other statutes is not a
dividing line between “adults” and “children” but between a Class 4 felony in the case of Code
§ 18.2-63, a Class 6 felony in the case of Code § 18.2-361(A), and a misdemeanor in the case of
Code § 18.2-371. Appellant reads a different distinction into the statutes than actually exists.
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The Supreme Court in Lawrence made quite clear that its ruling did not apply to sexual
acts involving children. The Court specifically notes that “[t]he present case does not involve
minors.” 539 U.S. at 578. Instead, “[t]he case does involve two adults.” Id. That its holding
does not apply to minors is one of four exceptions to the Court’s holding. The Supreme Court
found that acts involving minors along with non-consensual acts, public conduct, and prostitution
do not merit due process protection. Id. The Supreme Court of Virginia recognized the
importance of these exceptions when it noted in Martin that “this case does not involve minors,
non-consensual activity, prostitution or public activity. . . . [S]tate regulation of that type of
activity might support a different result.” 269 Va. at 42-43, 607 S.E.2d at 371.
Other jurisdictions have found these stated exceptions to be situations where the behavior
is not a protected liberty interest. See North Carolina v. Whiteley, 616 S.E.2d 576 (N.C.
Ct. App. 2005) (upholding constitutionality of “crimes against nature” statute in situations
involving minors, non-consensual acts, prostitution, and public acts); North Carolina v. Oakley,
605 S.E.2d 215 (N.C. Ct. App. 2004) (holding Lawrence did not prohibit admission of evidence
of defendant’s homosexuality in case involving prosecution under a sodomy statute for contact
with a minor); Ohio v. Freeman, 801 N.E.2d 906 (Ohio Ct. App. 2003) (finding no
constitutionally protected right to engage in incest with adult daughter under Lawrence);
Washington v. Clinkenbeard, 123 P.3d 872 (Wash. Ct. App. 2005) (upholding statute preventing
sexual contact between school employee and student aged sixteen or older).
Furthermore, we have cited the exceptions noted in Lawrence to uphold the
constitutionality of Code § 18.2-361(A) in other settings. In Singson, we found this same law
constitutional in affirming the conviction of a man accused of public sodomy based on the public
acts exception in Lawrence. 46 Va. App. at 738, 621 S.E.2d at 688. In keeping with our
decision in Singson, we conclude that Code § 18.2-361(A) is constitutional as applied to
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appellant because his violations involved minors and therefore merit no protection under the Due
Process Clause.
Affirmed.
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