William S. MacDonald was convicted for sodomy in 2005 in Virginia. The law bans oral and anal sex between consenting adults. The age of consent in Virginia is 15. The court found that he had sex with two female co-workers aged 16 and 17. He was sentenced to 20 years in prison with 17 of those years stayed.

A similar sodomy law in Texas was declared unconstitutional by the Supreme Court in 2003. At the time everyone thought that the Supreme Court action would affect the Virginia law and those of other states that banned sodomy. But thus far MacDonald’s efforts to clear his record have been rebuffed since the Supreme Court exempted cases involving minors in Lawrence v. Texas However this leads to a confusing situation. Since the Virginia age of consent is 15 enforcing the anti-sodomy acts against those that have anal or oral sex with 16 and 17 year olds does not make vaginal sex with 16 and 17 year olds illegal. The California Supreme Court has ruled that making anal and oral sex illegal while allowing vaginal sex violates equal protection. The Constitution’s equal protection clause prohibits making illegal one activity and allowing another when there is no rational reason to differentiate between two similarly situated groups in an unequal manner.

While waiting for a Supreme Court decision on whether to hear the case MacDonald is subject to Jessica’s Law. He told the New York Times that he is unable to live with his wife and he is forced to be homeless.

The sodomy law appears to be aimed particularly at Gay and Lesbian citizens since it does not ban male/female vaginal sex. But as in MacDonald’s case it can be used against consenting heterosexuals also. No doubt it was used in this case because of the 25 year difference between MacDonald and the two teenagers. ¹