Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
WILLIAM S. MCDONALD,
A/K/A WILLIAM S. MACDONALD
v. Record No. 061456 OPINION BY JUSTICE DONALD W. LEMONS
June 8, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider a constitutional challenge to
Code § 18.2-361 prohibiting sodomy.
I. Facts
The facts of this case are not in dispute. William S.
McDonald ("McDonald"), a man who was 45 to 47 years old during
the years when the subject events took place, engaged in
private, sexual intercourse and oral sodomy with a 16-year-old
female, L.F., on two occasions. McDonald also had private,
sexual intercourse and engaged in oral sodomy with a different
female, A.J., who was 17 years of age at the time. In a non-
jury trial, McDonald was found guilty of one count of
contributing to the delinquency of a minor under Code § 18.2-
371 and four counts of sodomy under Code § 18.2-361. Only the
sodomy convictions are before this Court on appeal.
II. Proceedings
a. Trial Court
Prior to trial, a written “Motion to Dismiss on Due
Process Grounds” was filed asserting that “Code Section 18.2-
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361 violates the Due Process Clause of the Fourteenth
Amendment of the United States Constitution” and further
citing to this Court’s opinion in Martin v. Ziherl, 269 Va.
35, 607 S.E.2d 367 (2005). Significantly, the written motion
did not state whether the constitutional challenge was facial
or as applied to McDonald. There were no memoranda of law or
briefs filed in support of the motion to dismiss.
Additionally, the Commonwealth filed no written response.
The record does not reveal whether this written motion
was the subject of a pre-trial consideration; however, the
matter was brought to the trial court’s attention at the
conclusion of the Commonwealth’s case-in-chief. In the oral
motion to dismiss, McDonald and the trial court made reference
to the written motion previously filed. McDonald’s argument
at this time was entirely predicated upon his contention that
the victims were both “of the age of consent.” Counsel for
McDonald stated:
My argument would be you have testimony from
these two girls they consented, they were not
forced, they were not threatened, they were not
paid. These were not public acts, they were
private, concealed from other people. My
argument would be that I believe that the age of
consent in Virginia would be sixteen.
Continuing, in an apparent reference to the only case that had
been mentioned, Martin, counsel stated:
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My argument here would be based on the testimony
that you heard thus far that these are two people
who are old enough to consent, who have consented,
who have not been forced to do anything, who have
not been threatened in any way and who are willing
participants in these activities. And my argument
is that because they are of the age of consent –
the court there doesn’t say specifically if they
are minors this ruling wouldn’t apply. It says it
may – state regulation of this type of activity
might support a different result. But, at the
same time we do not have people who are under the
age of consent, we have people who are of the age
of consent. One girl being seventeen-and-a-half
years old at the time and one girl being sixteen
at the time. They have not detailed that they
have been forced to commit any of these acts. In
fact, what Mr. McDonald is accused of is
consensual sodomy. And so what I would argue is
that because they are of the age of consent and
they’re old enough to give that consent, there is
no crime here, and to punish him would be in
violation of the due-process clause of the 14th
Amendment, just taking the Commonwealth at its
evidence.
At no point in this argument to the trial court did
McDonald claim that Code § 18.2-361 was facially
unconstitutional nor did he expressly argue that the statute
was unconstitutional as applied to him. By implication,
McDonald makes an as-applied argument maintaining that on the
facts of this case, because the victims were of the age of
consent, it would violate the Due Process Clause of the 14th
Amendment to find him guilty of the offenses charged. In an
apparent reference to Martin wherein we stated, “It is
important to note that this case does not involve minors, non-
consensual activity, prostitution, or public activity,” 269
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Va. at 42, 607 S.E.2d at 371, McDonald sought to bring his
case within the scope of our decision in Martin by arguing
that the specific exceptions we noted did not apply in this
case because the age of consent for sodomy was sixteen-years-
old and both victims were “of age.” As presented to the trial
court, McDonald’s objections were quite narrowly stated.
Addressing the only argument made by McDonald, the trial
court stated:
I don’t find that the due-process clause or the
case that you cite would abrogate the law as it
relates to juveniles and the code section that
they’re charged under, and I don’t find any
constitutional violation.
The trial court denied the motion to dismiss. After
presentation of McDonald’s evidence, counsel for McDonald
stated, “Your Honor, the defense at this time will rest and
renew its motion to dismiss on the grounds previously stated.”
No additional arguments were offered in support of the motion
to dismiss on constitutional grounds, and the trial court
ruled as follows: “I would overrule your motions at the
conclusion of all the evidence and hear argument at this
point.” The court then heard closing arguments on the merits
of the case.
b. Court of Appeals
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After conviction, McDonald noted his appeal to the Court
of Appeals of Virginia and in his petition stated the Question
Presented as follows:
Did the trial court err in finding that Virginia
Code § 18.2-361 Section A remains a valid
exercise of the police power of the state,
surviving a substantive due process
constitutional challenge?
For the first time, McDonald included in his argument:
"Virginia Code Section 18.2-361 Section A, insofar as it
relates to consensual sodomy between unrelated individuals who
have reached the age of consent is facially unconstitutional,
as a violation of the Due Process Clause of the Fourteenth
Amendment.” At the petition stage in the Court of Appeals,
McDonald also argued that “the statute is also
unconstitutional as applied to the Defendant, as it prohibits
constitutionally protected conduct between individuals who
have reached the age of consent for such acts.” Once again,
McDonald’s argument was predicated upon the age of consent.
Upon grant of the petition for appeal, McDonald filed his
opening brief reciting the same question presented and making
arguments identical to those contained in his petition.
The Court of Appeals in a published decision, McDonald v.
Commonwealth, 48 Va. App. 325, 630 S.E.2d 754 (2006), affirmed
the judgment and conviction of the trial court. The Court of
Appeals appeared to hold that McDonald lacked standing to
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mount a facial challenge to the constitutionality of a statute
because a party "has standing to challenge the
constitutionality of a statute only insofar as it has an
adverse impact on his own rights.” Id. at 329, 630 S.E.2d at
756 (quoting County Court of Ulster County v. Allen, 442 U.S.
140, 154-55 (1979)). The Court of Appeals appeared to hold
that “only an as-applied challenge was appropriate.” Id.
Nonetheless, the Court of Appeals also appeared to decide the
facial challenge to the statute by holding that “nothing in
Lawrence or the Supreme Court of Virginia’s opinion in Martin
. . . facially invalidates Code § 18.2-361(A).” Id.
The Court of Appeals then considered an as-applied
challenge to the constitutionality of Code § 18.2-361(A).
Recognizing that McDonald predicates his argument upon his
contention that the victims had reached the “age of consent,”
the Court of Appeals concluded that the statute “is
constitutional as applied to McDonald because his violations
involved minors and therefore merit no protection under the
Due Process Clause.” Id. at 332, 630 S.E.2d at 758.
c. Supreme Court of Virginia
Upon appeal to this Court, McDonald assigns error as
follows:
Mr. McDonald assigns as error Judge Haley’s
decision denying his appeal, and specifically
his findings that:
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1. That Mr. McDonald did not have standing to
mount a facial attack on the
constitutionality of Virginia Code § 18.2-
361(A).
2. That Virginia Code § 18.2-361(A) survives
an as applied constitutional attack where
the conduct alleged involved an adult and
a minor who is above the age of consent in
Virginia.
While assignment of error 2 is worded somewhat differently
than the content of McDonald's Question Presented in the Court
of Appeals, it nonetheless fairly encompasses his argument to
that court. Assignment of error 1 is directed to the judgment
of the Court of Appeals. In his brief before this Court,
McDonald makes the same arguments he did in the Court of
Appeals. He is aided in his arguments by a brief amicus
curiae.
But the efforts of the amicus are to no avail because the
arguments of the parties on appeal and thus the aid of amicus
must be limited to issues preserved in the trial court, Rule
5:25, and to issues presented before the appellate courts,
Rule 5A:12, Rule 5:17 and Rule 5:30(c). Of course, an
appellate court may not reverse a judgment of the trial court
based upon an alleged error in a decision that was not made or
upon an issue that was not presented. The trial court in this
case never had before it a claim of facial invalidity of Code
§ 18.2-361(A). Consequently, we will not consider McDonald’s
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first assignment of error. We will consider his limited
argument concerning the constitutionality of the statute as
applied to him.
III. Analysis
The very narrow issue preserved in the trial court and
presented by McDonald for our review is quite simple.
McDonald maintains that our decision in Martin governs this
case, because, he alleges, the victims were of the age of
consent and not excepted from the scope of our opinion.
The Martin case involved two unmarried adults in a
sexually active relationship. 269 Va. at 38, 607 S.E.2d at
368. Martin became infected with the herpes virus allegedly
because of sexual contact with Ziherl. Id. After their
relationship ended, Martin sued Ziherl in tort alleging that
he knew he was infected with the sexually transmitted herpes
virus when they engaged in unprotected sexual conduct, knew
that the virus was contagious, and failed to inform her of his
condition. Id. Ziherl filed a demurrer asserting that
Martin's injuries were caused by her participation in an
illegal act under Virginia law and therefore, under Zysk v.
Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), the motion for
judgment did not state a claim upon which relief could be
granted. Id. The trial court sustained Ziherl’s demurrer.
Id.
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On appeal we considered the effect of the decision of the
Supreme Court of the United States in Lawrence v. Texas, 539
U.S. 558 (2003), upon our prior decision in Zysk and further
considered whether Code § 18.2-344, the fornication statute,
("Any person, not being married, who voluntarily shall have
sexual intercourse with any other person, shall be guilty of
fornication, punishable as a Class 4 misdemeanor."), could
continue to provide a public policy basis for not permitting
civil recovery for the conduct presented in both Zysk and
Martin.
Lawrence had been convicted of violating a Texas statute
that made it a crime for two persons of the same sex to engage
in certain intimate sexual conduct described as the act of
sodomy. Tex. Penal Code Ann. § 21.06(a)(2003). The Court of
Appeals for the Texas Fourteenth District rejected Lawrence’s
constitutional challenge to the statute relying on Bowers v.
Hardwick, 478 U.S. 186, 189 (1986). The Supreme Court in
Bowers had previously held that a Georgia statute making it a
crime to engage in homosexual sodomy, was constitutional.
Lawrence v. State, 41 S.W.3d 349, 360-62 (Tex. App. 2001).
Reversing its prior decision in Bowers, the Court in Lawrence
held that the Texas sodomy statute was unconstitutional
because it furthered “no legitimate state interest which can
justify its intrusion into the personal and private life of
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the individual.” Lawrence, 539 U.S. at 578. The Court in
Lawrence noted that:
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. It does
not involve whether the government must
give formal recognition to any
relationship that homosexual persons seek
to enter.
Id.
Upon consideration of the decision in Lawrence, we
observed in Martin that:
We find no relevant distinction between
the circumstances in Lawrence and the
circumstances in the present case . . . .
We find no principled way to conclude that
the specific act of intercourse is not an
element of a personal relationship between
two unmarried persons or that the Virginia
statute criminalizing intercourse between
unmarried persons does not improperly
abridge a personal relationship that is
within the liberty interest of persons to
choose. Because Code § 18.2-344, like the
Texas statute at issue in Lawrence, is an
attempt by the state to control the
liberty interest which is exercised in
making these personal decisions, it
violates the Due Process Clause of the
Fourteenth Amendment.
269 Va. at 41-42, 607 S.E.2d at 370.
First, it is necessary to state that our holding in
Martin was that, under the circumstances presented, the
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statute at issue, Code § 18.2-344, was unconstitutional. See
Id. at 42, 607 S.E.2d at 371. We further stated that:
It is important to note that this case does not
involve minors, non-consensual activity,
prostitution, or public activity. The Lawrence
court indicated that state regulation of that
type of activity might support a different
result. Our holding, like that of the Supreme
Court in Lawrence, addresses only private,
consensual conduct between adults and the
respective statutes’ impact on such conduct. Our
holding does not affect the Commonwealth’s police
power regarding regulation of public fornication,
prostitution, or other such crimes.
Id. at 42-43, 607 S.E.2d at 371. Clearly, the declaration
that the holding did not affect the Commonwealth’s police
power regarding other crimes is the essence of an as-applied
analysis of constitutionality of the statute. After Martin,
Code § 18.2-344 still has efficacy as noted; consequently, it
was not facially invalidated by our opinion.
McDonald’s as-applied constitutional challenge to Code
§ 18.2-361, the sodomy statute, involves McDonald's proposed
construction of several statutes. Except for certain conduct
between specified related persons, the sodomy statute does not
contain age restrictions. See Code § 18.2-361. McDonald
seeks to “borrow” age restrictions from the contributing to
the delinquency of a minor statute, Code § 18.2-371 and the
carnal knowledge statute, Code § 18.2-63.
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In pertinent part, the contributing to the delinquency of
a minor statute states:
Any person 18 years of age or older, including
the parent of any child, who . . .(ii) engages in
consensual sexual intercourse with a child 15 or
older not his spouse, child, or grandchild, shall
be guilty of a Class 1 misdemeanor.
Code § 18.2-371.
In pertinent part, the carnal knowledge statute states:
If any person carnally knows, without the use
of force, a child thirteen years of age or
older but under fifteen years of age, such
person shall be guilty of a Class 4 felony.
. . . .
For the purposes of this section, (i) a child
under the age of thirteen years shall not be
considered a consenting child and (ii) "carnal
knowledge" includes the acts of sexual
intercourse, cunnilingus, fellatio, anallingus,
anal intercourse, and animate and inanimate
object sexual penetration.
Code § 18.2-63.
McDonald contends that the contributing to the
delinquency of a minor statute refers only to sexual
intercourse and penalizes such acts as a misdemeanor for an
adult to commit such acts upon children aged fifteen, sixteen,
or seventeen. Because the statute does not mention sodomy,
McDonald argues that the contributing statute does not apply
to acts of sodomy. He further infers from the carnal
knowledge statute that because prosecution under its
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provisions includes both sexual intercourse and specified
forms of sodomy, that this "puts the age of consent for sexual
activity in Virginia at 15 years old.” McDonald is incorrect
for two reasons: (1) the sodomy statute stands alone and
without age restrictions concerning consent in this case, and
(2) the real issue in this case is the victims' legal status
as minors.
First, the fact that separate statutes may overlap in
their proscription of specific conduct does not detract from
their independent enforcement except when double jeopardy
concerns are implicated. "[W]hen an act violates more than
one criminal statute, the Government may prosecute under
either so long as it does not discriminate against any class
of defendants." United States v. Batchelder, 442 U.S. 114,
123-24 (1979); see also Muhammad v. Commonwealth, 269 Va. 451,
501-02, 619 S.E.2d 16, 45 (2005). "Whether to prosecute and
what charge to file or bring before a grand jury are decisions
that generally rest in the prosecutor's discretion."
Batchelder, 442 U.S. at 124. McDonald raises no double
jeopardy issues. Furthermore, there is no basis for
engrafting provisions or perceived implications from the
carnal knowledge statute and the laws governing the crime of
contributing to the delinquency of a minor into the sodomy
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statute. Such matters are for legislative consideration, and
here the provisions are simply different.
Second, the real issue is the legal status of the victims
as minors. Determining the age of majority is the province of
the General Assembly. Mack v. Mack, 217 Va. 534, 537, 229
S.E.2d 895, 897 (1976) (holding "minority is a legal status
subject to change by the legislature”). The Code is quite
specific concerning the dividing line between minors and
adults. Code § 1-203 (" 'Adult' " means a person 18 years of
age or more.”), Code § 1-204 (“For the purposes of all laws of
the Commonwealth including common law, case law, and the acts
of the General Assembly, unless an exception is specifically
provided in this Code, a person shall be an adult, shall be of
full age, and shall reach the age of majority when he becomes
18 years of age.”), Code § 1-207 (“ 'Child,' 'juvenile,'
'minor,' 'infant,' or any combination thereof means a person
less than 18 years of age.").
The sodomy statute has no express age of consent;
however, it must be applied in a constitutional manner in
conformity with Lawrence and Martin. The Court in Lawrence
was explicit in its declaration of the scope of its opinion:
“The present case does not involve minors.” 539 U.S. at 578.
We were equally explicit in our opinion in Martin: "It is
important to note that this case does not involve minors, non-
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consensual activity, prostitution, or public activity. . . .
Our holding, like that of the Supreme Court in Lawrence,
addresses only private, consensual conduct between adults and
the respective statutes’ impact on such conduct.” 269 Va. at
42-43, 607 S.E.2d at 371.
As we have previously held, we "construe the plain
language of a statute to have limited application if such a
construction will tailor the statute to a constitutional fit."
Virginia Society for Human Life v. Caldwell, 256 Va. 151, 157
n.3, 500 S.E.2d 814, 817 n.3 (1998). Therefore, when there is
an as-applied challenge to a statute, we must interpret the
statute in such a manner as to remove constitutional
infirmities.
The only issue preserved at the trial court and presented
to this Court is an as-applied constitutional challenge to the
sodomy statute. McDonald’s statutory construction argument is
faulty and furthermore, it misses the real issue. The victims
in this case were minors, defined by the Code of Virginia as
persons under the age of eighteen. See Code § 1-207. Nothing
in Lawrence or Martin prohibits the application of the sodomy
statute to conduct between adults and minors.
IV. Conclusion
For the reasons stated, we will affirm the judgment of
the Court of Appeals.
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Affirmed.
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