Ken Shepherd claimed in an Oct. 31 NewsBusters post that the Daily Beast "misled -- and arguably lied -- to readers" by claiming that Virginia attorney general Ken Cuccinelli "tried and failed to reinstate a ban on oral and anal sex in his home state":
Of course that's patently false. What Cuccinelli, the state's attorney general, did do was seek to prosecute an alleged sex offender for attempting to force an underage girl to perform fellatio on him. Cuccinelli argued that the Supreme Court's decision in Lawrence v. Texas did not apply to prosecuting acts of sodomy.
Indeed, as noted in the writ of certiorari -- basically the document you use when you ask the Supreme Court to take up your case -- Cuccinelli's office quoted from the ruling in Lawrence v. Texas that the decision in that case did NOT address sodomy committed by someone of consenting age upon a minor, as was the case in Moose v. MacDonald:
This was a case not about reversing Lawrence v. Texas and the resulting unconstitutionality about the legality of oral and anal sex between consenting adults. This case was about upholding the conviction of a sex offender, something that should not be troubling to anyone, regardless of whether they are liberal, conservative, moderate, or libertarian.
But what's precision and journalistic integrity when you're on a roll bashing a social conservative as anti-consensual oral sex?
Actually, Shepherd is the one who's not concerned with precision and journalistic integrity.
As Slate's Dalia Lithwick details, Virginia's anti-sodomy law has been found to be unconstitutional under Lawrence v. Texas, and Cuccinelli's appeal was about attempting to uphold by "a call for judges to read statutes to mean what they don’t say":
The sex offender in this case was William MacDonald, a 47-year-old man who solicited oral sex from a 17-year-old woman. (No sex was had). Because 15 is the legal age of consent in Virginia, authorities couldn’t charge MacDonald for statutory rape. Faced with other statutes to choose from, they opted to charge him with soliciting a minor by inducing her to commit sodomy, for which he served a year in prison and must now register as a sex offender.
But even with the tide of legal authority against him, Cuccinelli decided to appeal the case to the Supreme Court, arguing that Virginia’s anti-sodomy statute has no constitutional problem, if—as he concedes, and only if—the high court would just interpret the terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds. (Justice Kennedy left the thread of that argument hanging in his majority opinion in Lawrence.) In effect, Cuccinelli’s legal appeal asks the Supreme Court and the lower courts to ignore the clear meaning and intent of the law, to interpret it in a way that advances narrow goals he wants to advance.
Of course, Cuccinelli’s problem at the Supreme Court is that Virginia’s sodomy statute doesn’t mention age, so reading an imaginary age requirement into it is not “interpreting” the statute so much as rewriting it—a freewheeling position normally anathema to Tea Party conservatives like Cuccinelli. Moreover, the Virginia legislature actually tried to rewrite the law to salvage it for narrower purposes after the Lawrence decision, but Cuccinelli helped kill that bill. You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.
The legal position Cuccinelli pushes creates truly bizarre results, which is normally a sign for reviewing courts that something smells funky. Asking a federal court to turn a state anti-sodomy law into an anti-statutory rape law means that if MacDonald had engaged in ordinary intercourse with a 17-year-old girl every day for a month, he would not face a felony conviction or be a sex offender. He’d just be that guy. But his decision to solicit oral sex, even his decision to just phone her and ask for it, under the imaginarily rewritten law, requires both.
Cuccinelli’s proposed revision to Virginia’s sodomy law would also mean that those older than 15 can legally consent to sex, yet, have no right of sexual privacy in actually having sex. Or, to put it differently, Virginia could charge any 16- and 17-year-old with felony sodomy simply because they happened to choose oral or anal sex over vaginal sex.
Shepherd didn't mention any of those important details, of course.