## Facts

- Joel Dulay Singson was charged with solicitation to commit oral sodomy under Va. Code §§ 18.2-29 and 18.2-361 after an encounter in a department-store men’s restroom.
- The restroom was freely accessible to the public, including children.
- Singson entered the handicapped stall and remained there for about 30 minutes.
- He then approached a stall occupied by an undercover police officer, peered through the door crack while the officer was undressed, and engaged the officer in conversation.
- Singson stated he was looking for “cock,” said he wanted to “suck cock,” and indicated the handicapped stall as the location for the act.
- The circuit court denied Singson’s motion to dismiss the indictment on constitutional grounds.
- Singson entered a conditional guilty plea preserving his constitutional challenges, was convicted, and received a sentence of three years’ imprisonment with most of the sentence suspended.

## Issues

1. Whether Singson had standing to bring a facial Due Process Clause challenge to Va. Code § 18.2-361 based on Lawrence v. Texas, given that his conduct involved public restroom solicitation.
2. Whether Va. Code § 18.2-361, in conjunction with the solicitation statute, was unconstitutionally overbroad under the First Amendment because it allegedly chilled protected speech.
3. Whether Singson could challenge his sentence as cruel and unusual punishment under the Eighth Amendment on appeal.

## Decision

- The Court of Appeals of Virginia affirmed the conviction.
- The court held Singson lacked standing to assert a facial substantive due process challenge to Va. Code § 18.2-361 under Lawrence because his conduct was public solicitation outside Lawrence’s protected context.
- The court rejected the First Amendment overbreadth challenge, concluding the statutes did not substantially burden protected speech.
- The court held the Eighth Amendment claim was procedurally barred due to failure to preserve the issue in the trial court.

## Legal Principles

- A defendant generally may not mount a facial due process challenge based on liberty interests recognized for private, consensual adult sexual conduct when the defendant’s conduct is public and falls outside that protected sphere.
- Lawrence v. Texas protects private, consensual adult sexual conduct and does not compel invalidation of a sodomy statute as applied to public conduct or solicitations in public places.
- First Amendment overbreadth is applied sparingly; the challenger must show a realistic danger that the law will substantially compromise protected expression of parties not before the court.
- Criminal solicitation laws regulate conduct (the act of soliciting a crime), and speech integral to criminal conduct does not receive the same First Amendment protection as public discourse.
- Constitutional sentencing challenges must be preserved in the trial court to be considered on appeal under state procedural rules.

## Conclusion

The court upheld Singson’s conviction for soliciting oral sodomy in a public restroom, ruling that Lawrence did not give him standing to invalidate the sodomy statute on its face, that the solicitation-based prosecution did not create substantial First Amendment overbreadth, and that his Eighth Amendment claim was forfeited by lack of preservation.


Singson v. Commonwealth, 621 S.E.2d 682 (Va. Ct. App. 2005)