RICHMOND, VA—Following a Federal court decision that ruled Virginia's anti-sodomy law unconstitutional, some Virginia prosecutors and child safety advocates tell 8News children are now being put at an added risk of being victimized by sexual predators.
"Right now it is open season on children in Virginia," Louisa County Commonwealth Attorney Rusty McGuire told 8News.
A few months ago, the Federal 4th Circuit Court ruled Virginia's Crimes Against Nature law, also known as the anti-sodomy law, unconstitutional.
The ruling has been hailed as a victory for gay rights and the privacy rights of all adults when it comes to keeping the government out of one's bedroom.
But, because of the way many of the Commonwealth's sex crime laws are constructed, the ruling also meant some sex acts and sexually explicit communications between adults and teenagers are now no longer a crime.
In the Code of Virginia database, Virginia's sodomy statute is known as 18.2-361.
That code is also referred to in 29 other statutes, and with Virginia's sodomy statue law unconstitutional, parts of those 29 other statutes may now be unenforceable.
"It puts all of our statutes that we use to prosecute predators who try to sodomize or at least solicit sodomy from children at risk of not even being valid," said McGuire.
In 2010, the 8News Investigation "Preying on Predators" profiled Louisa County's Child Safety Initiative.
The initiative was designed to take a no holds barred approach to cracking down on sexual predators who were using the Internet to target children. To do it, detectives posed in cyber space as teens.
"It can be a matter of just a couple of minutes for solicitations to occur," Former Louisa County Detective Patrick Seiwert told 8News.
In the initiative's five year history, dozens upon dozens of men looking to exploit children have been convicted and locked up.
But now that program has come to a screeching halt. "We're almost in a holding pattern," Commonwealth Attorney Rusty McGuire said.
McGuire says the problem began when the federal court ruled Virginia's anti-sodomy law unconstitutional.
"If you could imagine a house built of cards, that's the way the Code of Virginia is," McGuire sail. "You pull out that foundation card the entire house collapses."
McGuire say by overturning the one law, the 29 other statutes used to prosecute predators who target children are at risk of being invalid.
For example, the law banning Internet Solicitation— (code# 18.2-374.3) which says it's a crime to solicit any child under 15 to any act constituting an offense under statute 18.2-361. Another law in jeopardy is (18.2-370.1) —which prohibits sex acts between someone in a supervisory or custodial role such as a teacher or step parent with any child under 18.
"Essentially it's de-criminalized sodomy against children," said Camille Cooper, a child safety advocate with the group Protect.
Cooper, who also serves on the State Crime Commission's child sex abuse work group, says Virginia now has a major loop hole in its laws.
"A technical legal loop hole and children suffer because of it," Cooper said.
Now, Cooper and McGuire are both backing Attorney General Ken Cuccinelli's request for the Supreme Court to step in and rule that Virginia's anti-sodomy law, when applied strictly to actions between an adult and minor, is constitutional.
"We need, let me say that again, we absolutely need the Supreme Court to step in this case," McGuire said. "The children of Virginia are at risk."
However, Claire Guthrie Gastañaga, the Executive Director of The ACLU of Virginia, downplays the severity of the loophole in Virginia law.
"To the extent that there is a gap, and I would argue it's very small and only involves consensual behavior, and I believe it only involves consensual behavior for 16 to 18-year-olds, it's not open season on kids," Gastañaga said.
The ACLU took part in the case that resulted in Virginia's anti-sodomy law being ruled unconstitutional. The ACLU contends fixing the problems with Virginia's laws is the job of the General Assembly and the Supreme Court should not weigh-in.
"The legislature is responsible for writing constitutional laws they've had 10 years to do so and they've chosen not to," Gastañaga said.
While the fix is a major legal debate, one thing is clear—until either the Supreme Court steps in, or Virginia lawmakers take action, law enforcement looking to prey on predators tell 8News they've had to put their hunt on hold.
"Tools from our tool box have been taken away," McGuire said.
While the loophole in the law basically decriminalizes consensual sodomy between adults and older teenagers, cases involving force remain illegal under numerous other statutes.
Note: Camille Cooper and Rusty McGuire are married, but are in different political parties.
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