ADAM DARRICK TOGHILL v. HAROLD W. CLARKE, Director, Dept. of Corrections
US Court of Appeals for the Fourth Circuit, Traxler, Dec. 15, 2017,
Solicitation of Minor – VA Law prohibiting solicting a minor for purposes of sodomy did not violate Lawrence v. Texas.
Interesting to read the opinion in light of the court’s consciousness of the federalism issues. That being said, someone interested in “the point” could just skip to page 24 of the opinion and find that this entire discussion was fun but unnecessary.
Footnote on p.17:
We note that, had the Supreme Court of Virginia stopped there, it likely would have set up an intolerable conflict between our court and theirs, at least insofar as we differed as to the scope of the Lawrence decision and the question of whether Virginia’s
convictions for sodomy and solicitation of sodomy of minors under Va. Code §§ 18.2- 361(A) and 18.2-29 could survive that decision. Because the Supreme Court of Virginia was not bound by the decision in Moose, it would continue to affirm such convictions against due process challenges if the victims were minors—as well as when the criminal conduct involved prostitution, public sodomy, or victims who could not or did not consent—only to have us grant habeas relief to the same Virginia prisoners based upon our contrary view, unless and until Moose was overruled by an en banc court in this circuit or the United States Supreme Court. Fortunately, and perhaps in recognition of this inevitable conflict, the Supreme Court of Virginia did not stop there.
Facts:
In 2011, Toghill, who was 32 years old, engaged in an 80-minute email exchange with “Becca” Flynn, a 13-year-old girl who had posted an advertisement in the “miscellaneous romance” section of Craigslist.
After exchanging pictures, Toghill “repeatedly expressed his desire to engage in oral sex with her, questioned her about her sexual experience, and explored potential locations where they could meet.”
“Becca” was actually a Virginia deputy sheriff and Toghill was charged under Virginia Law prohibiting an adult from using a communication system to intentionally propose to a child under 15 the performance of an act of sexual intercourse or any act constituting an offense under § 18.2-361. At the time, these acts included “carnally know[ing] any male or female person by the anus or by or with the mouth,” including “voluntarily submit[ting] to such carnal knowledge.” Virginia updated the law in 2014 to limit the scope.
Toghill was convicted and his convictions were affirmed in state court.
In affirming Toghill’s conviction, the Virginia Supreme Court limited the anti-sodomy statute to “sodomy involving children, forcible sodomy, prostitution involving sodomy and sodomy in public.”
Toghill then filed for federal review, arguing that the Virginia statute was unconstitutional because it prohibited sodomy and oral sex.
Held:
The Fourth Circuit disagreed. The Supreme Court’s decision in Lawrence v. Texas was limited to consenting adults in private.
Due Process – Sex Acts – Due process under the US Constitution protects the rights of adults in private to engage in consensual sexual activity including sodomy and oral sex.
Due Process – Sex Acts- This protection does not apply to acts committed in public, committed on an individual without consent, or involving minors.
Due Process – Laws that prohibit sodomy and oral sex are unconstitutional if they do not distinguish between acts committed involving protected and not-protected activities/targets.
Limiting Statute – A federal court can limit application of a federal statute, but cannot limit application of a state statute unless it is “reasonable and readily apparent.”
Note: This is to avoid federal courts rewriting state law
From the Case: Because the VA courts “rewrote” Virginia law, the 4th Circuit was able to uphold the conviction. Had the state court not limited the law, it would have been unconstitutional and the federal court would have “been required” to strike it down.