Virginia Lawyers Weekly VA Lawyers Weekly
A man who encouraged a woman to have carnal knowledge with a dog while performing oral sex on him argued a Virginia statute violated his due process rights, but the court upheld his conviction, finding no fundamental right to engage in bestiality. The due process clause requires that state prohibitions on certain conduct “be rationally related to legitimate government interests.” the court said, and Virginia’s ban on bestiality passes this test.
Background
Warren videotaped on his cellphone encounters he had with K.H. and her dog. The videos were sexual in nature and showed, among other things, the dog’s tongue penetrating K.H.’s vagina while K.H. performed oral sex on Warren. Warren can be heard on the videos encouraging the dog and directing K.H. to position her legs so as to give the dog improved access to her body.
Warren was charged with soliciting another person “to carnally know a brute animal or to submit to carnal knowledge with a brute animal.” Warren moved to dismiss the indictment on constitutional grounds. Specifically, he argued that Virginia Code §18.2-361(A) was both facially unconstitutional and unconstitutional as applied to him after the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). The trial court denied the motion.
The matter proceeded to trial. Warren did not offer any evidence. Instead, in addition to his constitutional arguments, he argued that the activities depicted in the videos were insufficient to establish a violation of Code §§18.2-29 and 18.2-361(A). The trial court rejected his arguments, finding that the videos demonstrated that Warren had solicited K.H. to engage in sexual conduct with an animal and that she had done so. Accordingly, the trial court convicted Warren of the charged offense.
On appeal, Warren does not challenge the sufficiency of the evidence to support his conviction. Rather, he limits his challenge to the constitutionality of Code §18.2-361(A), asserting that it violates his due process rights.
Facial challenge
Although the Lawrence majority made clear its view that the liberty interests protected by the due process clause prevented a state from criminalizing private, noncommercial, consensual acts of sodomy, whether heterosexual or same-sex, the opinion does not explicitly address whether longstanding prohibitions on other activities with a sexual component, such as bestiality or prostitution, similarly violate the liberty interests protected by the due process clause.
Warren argues that the reasoning of the Lawrence majority applies with equal force to his case, analogizing private acts of sodomy between consenting adults to private sexual activity by adults involving animals. He contends that, after Lawrence, the commonwealth simply may not criminalize such sexual activities, and therefore, Code § 18.2-361(A) is both facially unconstitutional and unconstitutional as applied to him.
In Toghill v. Commonwealth, 289 Va. 220 (2015), the Virginia Supreme Court held the pre-2014 version of Code § 18.2-361(A) was not facially unconstitutional. That conclusion is dispositive of Warren’s facial challenge to the current version. Because, consistent with Toghill, there are constitutional applications of the Virginia bestiality statute, Warren’s facial challenge to Code § 18.2-361(A) fails.
As-applied challenge
We now turn to Warren’s as applied challenge to Code § 18.2-361(A).
In addressing claims based upon substantive due process, a court must begin with “a careful description of the asserted fundamental liberty interest.” Here, although Warren characterizes the claimed right as “the right [of adults] to engage in consensual private conduct without intervention of the government,” we conclude that the right he actually asserts is a right to engage in bestiality.
However, there is no fundamental right to engage in bestiality. Warren has not identified any court that has concluded that bestiality is a fundamental liberty interest protected by the due process clause, and we decline his invitation to recognize bestiality as a fundamental right.
The due process clause not only prohibits states from infringing on fundamental rights, it requires that state prohibitions on certain conduct “be rationally related to legitimate government interests.” Virginia’s ban on bestiality passes this test as well.
Affirmed.
Warren v. Commonwealth, Record No. 2086-17-3, Jan. 15, 2019. CAV (Russell) from Pittsylvania Cir. Ct. (Moreau). Glenn L. Berger for Appellant, Eugene Murphy for Appellee. VLW No. 019-7-015, 13 pp.
