Delegate Thomas Garrett has proposed a bill that would make it a felony in Virginia for anyone to have oral or anal sex with a minor. But genital sex? Well, Virginia law would, even if this bill is enacted, provide that genital sex between an adult and a 15-to-17-year-old is a misdemeanor, and sex among 15-to-17-year-olds is perfectly legal. 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.
The proposal would also apply to prostitution, making oral sex with a prostitute a felony for both sides, while genital sex is a misdemeanor; that too seems hard to justify. Virginia law used to prohibit nongenital sex generally, and this proposal is a response to a MacDonald v. Moose (4th Cir. 2013), which applied Lawrence v. Texas to strike down the ban on the grounds that the ban covered private noncommercial adult sexual conduct. Delegate Garrett is trying to revive that old law in those areas — prostitution, sex involving minors, and sex in public places — where Lawrence might not apply. But even though this revival might be constitutional, that doesn’t make it smart.
And, yes, I realize that some people, presumably including Delegate Garrett, view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, […]