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For media inquiries only, contact:  Brian J. Gottstein
Email: bgottstein@oag.state.va.us (best contact method)
Phone: 804-786-5874

 

Attorney General Cuccinelli appeals to U.S. Supreme Court to uphold Virginia law used to prosecute child predators

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

** Below: 

RICHMOND (June 25, 2013) - Today, Attorney General Ken Cuccinelli 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 in MacDonald 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 in Lawrence 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.

Support from commonwealth's attorneys and children's advocate:

Louisa County Commonwealth's Attorney Rusty McGuire:
"The Fourth Circuit's Moose decision puts tools prosecutors need to protect children in jeopardy."

In a May 20, 2013, Richmond Times-Dispatch letter to the editor, McGuire wrote, "Should 47-year-old men be allowed to sexually prey on minors? Of course not - but a few months ago, a federal court overturned a Virginia law to prevent this behavior in MacDonald v. Moose. Without the intervention of the Supreme Court of the United States, a predator will go free. Numerous other laws to protect children are in jeopardy because they rely on the stricken statute. Already, an Internet predator is using the federal case to challenge his conviction in the Virginia Court of Appeals.  Not only did the federal opinion overturn Virginia law, but the opinion directly contradicts decisions of Virginia courts that ruled that it is appropriate to prosecute predators under the stricken statute." 

Dinwiddie County Commonwealth's Attorney Lisa Caruso:
"Undoubtedly, cases of this nature are horrific and devastating to the victims and their families. Accordingly, it is essential that the Supreme Court clarify the law.  As a mother and a prosecutor, I've been using this law to protect minors from predatory adults, and it would be a travesty for this tool to no longer be available to prosecutors to keep our children safe."

Virginia Beach Commonwealth's Attorney Harvey Bryant:
"In the last three years, law enforcement in Virginia`s largest city has used this code section and code sections linked to it 60 times against child sexual predators. This particularly egregious sexual crime against our children will go unpunished unless the Fourth Circuit decision is overturned.  All those who care about deterring and punishing predators who pursue our children must support this appeal to the Supreme Court."

Camille Cooper, director of legislative affairs, National Association to PROTECT Children:
"At the heart of the defendant's appeal is an effort to legalize sex acts between adults and children.  A crime against a child is still a crime against a child despite what MacDonald and his supporters would have the court believe. For the Fourth Circuit, an inability to distinguish between consensual adult-adult sex and a sex crime committed against a child by an adult is outrageous. For Virginia's children, the result of this case is catastrophic."

These commonwealth's attorneys are willing to speak to the media about how they use Virginia's law to prosecute child predators:

Rusty McGuire
Louisa County Commonwealth's Attorney
(804) 874-1461
rustymcguire2011@gmail.com

Lisa Caruso
Dinwiddie County Commonwealth's Attorney
Office:  (804) 469-4536
Cell:  (804) 731-4262

Harvey Bryant
Virginia Beach Commonwealth's Attorney
(757) 385-8545
hbryant@vbgov.org
  
Locations of sexual predators who may become eligible for removal from Virginia's sex offender registry if the Fourth Circuit's decision stands

Northern Virginia/ Fredericksburg
Currently living in region = 11
Currently out of state = 5
Currently incarcerated = 3
TOTAL = 19

Richmond area/ Central Virginia
Currently living in region = 16
Currently out of state = 2
Currently incarcerated = 3
TOTAL = 21

Charlottesville area
Currently living in region = 6
Currently out of state = 0
Currently incarcerated = 0
TOTAL = 6

Hampton Roads
Currently living in region = 10
Currently out of state = 1
Currently incarcerated = 2
TOTAL = 13

Shenandoah Valley
Currently living in region = 1
Currently out of state = 1
Currently incarcerated = 1
TOTAL = 3

Roanoke/ Lynchburg area
Currently living in region = 10
Currently out of state = 1
Currently incarcerated = 4
TOTAL = 15

Southwest Virginia
Currently living in region = 4
Currently out of state = 0
Currently incarcerated = 2
TOTAL = 6

Southside Virginia
Currently living in region = 2
Currently out of state = 0
Currently incarcerated = 2
TOTAL = 4

Deported
TOTAL = 3

Petition to the U.S. Supreme Court

You can see the petition to the U.S. Supreme Court here
  

More about Attorney General Cuccinelli

Photos of the attorney general

A copy of this news release may be found on the attorney general's web site here.

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