## Facts

- William Scott MacDonald was convicted in Virginia state court of (1) contributing to the delinquency of a minor and (2) felony criminal solicitation.
- The solicitation charge used Virginia’s “Crimes Against Nature” statute, Va. Code § 18.2-361(A), as the predicate felony; the statute criminalized oral and anal sex without limiting its reach to minors, coercion, or public conduct.
- The conduct involved MacDonald’s attempts to persuade a 17-year-old to engage in oral sex.
- He received a 10-year sentence on solicitation (with 9 years suspended), 12 months on the misdemeanor, and a requirement to register as a sex offender.
- After unsuccessful direct appeal and state postconviction proceedings, MacDonald filed a federal habeas petition under 28 U.S.C. § 2254 challenging the solicitation conviction as unconstitutional in light of Lawrence v. Texas.
- The district court denied relief; the Fourth Circuit granted a certificate of appealability on whether § 18.2-361(A) was unconstitutional facially or as applied under Lawrence.

## Issues

1. Whether Va. Code § 18.2-361(A) violates the Due Process Clause under Lawrence v. Texas because it criminalizes private, consensual sexual intimacy between adults.
2. Whether MacDonald could bring a facial constitutional challenge to § 18.2-361(A) in federal habeas despite the minor-involved facts of his offense.
3. Whether, under AEDPA, the state court’s rejection of MacDonald’s Lawrence-based challenge was contrary to, or an unreasonable application of, clearly established Supreme Court precedent.
4. If § 18.2-361(A) is unconstitutional, whether MacDonald’s solicitation conviction predicated on that statute can stand.

## Decision

- The Fourth Circuit reversed the district court’s denial of habeas relief and remanded for entry of habeas relief.
- The court held that Va. Code § 18.2-361(A) is facially unconstitutional under the Due Process Clause as construed in Lawrence v. Texas.
- The court concluded MacDonald had standing to mount a facial challenge because he was convicted under a statute that, on its face, reaches constitutionally protected conduct.
- Applying AEDPA, the court held the state court’s decision upholding the statute was an unreasonable application of Lawrence.
- Because the predicate felony was unconstitutional and no alternative valid predicate supported the judgment, MacDonald’s solicitation conviction could not stand.

## Legal Principles

- Under Lawrence v. Texas, the Due Process Clause protects private, consensual sexual intimacy between adults from criminal prohibition.
- A criminal statute that, as written and authoritatively construed, criminalizes constitutionally protected adult private consensual conduct is facially invalid.
- Federal courts may not salvage an overbroad state criminal statute by rewriting it to apply only to unprotected conduct (e.g., minors, coercion, or public acts) absent a limiting construction by the state.
- A defendant convicted under a statute may bring a facial constitutional challenge in habeas when the statute’s text reaches protected conduct and is not readily susceptible to a narrowing construction.
- Under AEDPA, habeas relief is warranted when a state court unreasonably applies clearly established Supreme Court precedent to uphold a conviction.

## Conclusion

The Fourth Circuit held that Virginia’s anti-sodomy statute was facially unconstitutional under Lawrence and, because MacDonald’s solicitation conviction depended on that invalid predicate felony, granted federal habeas relief vacating the solicitation conviction.


MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013)