Ken Cuccinelli thinks oral sex should be a crime, but he’s no longer so sure about adultery.

I note with some glee that Ken Cuccinelli, who has made an issue of keeping Virginia’s “Crimes Against Nature” law on the books* (1) said in 2008 that he thought the adultery laws ought not only to stay on the books be to be enforced and (2) is ducking away from that stance now that he’s running for Governor.

Now it ought to be strange that support for criminalizing “unnatural” sex acts counts as less extreme than criminalizing adultery. Adultery often isn’t a victimless act. And – unlike same-sex activity – it violates one of the Ten Commandments (#8 7, if you’re keeping score at home): behind murder, but ahead of theft. From the viewpoint of “Biblical” or “family” values, adultery ought to be a BFD, and its criminal prohibition a no-brainer.

Of course it isn’t. And, when I think about what enforcing that law would look like, I’m glad it isn’t. But I’m also glad to have the real agenda of the Religious Right displayed in public. It’s not faith, or family, or chastity. It’s just plain hatred. Cuccinelli, who favors imprisoning gays for consensual sexual acts, doesn’t dare to offend adulterers. He needs their votes.

* Cuccinelli’s story is that the law used only against those who molest minors, use force, or have sex in public. He doesn’t mention that, when the chance arose, he opposed replacing it with a law to forbid … molesting minors, using force, and having sex in public. He also hasn’t explained why a 47-year-old man who has ordinary intercourse with a 17-year-old girl should get off with a misdemeanor conviction, while if he gets a BJ it ought to be a felony. And now he’s complaining that if the law he refused to update is struck down, some bad people will have to be dropped from the sex-offender registry. Boo freaking hoo.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

25 thoughts on “Limits”

    1. A Jewish couple was staying at a Howard Johnson’s hotel and observed a sign saying, “Please remember the Seventh Commandment.” They were puzzled because it seemed to them that if everyone observed this injunction, that could cut into an appreciable amount of the hotel’s business revenue.

      When they got home they asked their rabbi for an explanation. The rabbi explained that the hotel owners were not Jewish and simply wanted to remind its guests not to steal the towels.

  1. It’s pretty clear that this guy is the most qualified among the candidates who are cleared for the ballot to become Governor of Virginia.

    1. A bog standard Republican lunatic who likes to smoke pot is not qualified at all for any position of authority. Abolish all taxes and eliminate public schooling is not the platform of a sane or qualified person, whatever he smokes.

      1. If you’re going to be snarky, maybe you can try to be accurate as well?

        He specifies four(4) taxes that he wants to get abolish. He doesn’t even propose abolishing the income tax, even though states like New Hampshire, Florida, and Texas demonstrate that this is not pie-in-the-sky. The dude was a successful entrepreneur so (presumably) we wants to abolish those four(4) taxes because they are inefficient, e.g., they have a dead-weight loss that considerably offsets the revenue that they raise (presumably by depressing the overall level of economic activity).

        He also straightforwardly says that the taxes that are abolished should have their revenue replaced (to some extent) by more economically efficient user fees. Finally, he bluntly states that he wants to lower overall government spending (presumably to keep more money inside Virginians’ households).

        Last thing: Anyone who wants to end the drug war is not a standard issue Republican and, honestly, in a different century I would challenge you to a duel on the basis of such rank calumny. (BTW, this is still the way that such matters are settled outside of Charlottesville and the wussified precincts of Northern Virginia….)

  2. Let’s not forget that homosexuality was illegal not too long ago. Before we make some libertarian declaration like homosexual males have a right to consume penises, we should apply a public policy analysis to study dangers of homosexuality. What if legalized homosexuality actually leads to an influx of illegal migrants engaging in homosexuality activity (easy enough to fit under the large umbrella of human trafficking I’m sure)?

    We already know that male homosexuality has costs to society. Males who consume too many penises might catch a disease, which leads to health care costs and productivity losses. Health is a primary value, therefore we are justified as a society in stepping in and stopping male penis consumption. But not all male penis consumption is harmful of course, in fact, it is only those who abuse penises that have trouble. Of course we can probably presume that an increase in overall male penis consumption will cause an increase in problematic male penis consumption. Again, we are justified in trying to reduce male penis consumption for everyone. Maybe high taxes on gay night clubs or restricting their hours of operation. Possibly tight restrictions on advertisements from companies like Tommy Hilfiger, or Kenneth Cole. Of course, we don’t want long prison terms for simple possession by a man of another man’s penis, but maybe gay courts, or forced treatment.

    I personally don’t know the answer, because I am not an accredited public policy expert. This question is for “wise men” to decide for all of us, so I apologize for my plebian speculation. I just know some central planner somewhere can decide the right amount of gay for our society.

        1. I guess neither Nick nor I can recognize a Jeff “The Dude” Lebowski monologue. In my case, that’s because I don’t know what it is. What is a Jeff “The Dude” Lebowski monologue?

          I hasten once again to add that this isn’t a poor attempt at snark. Obviously this is a cultural reference that I don’t get. I seem to be struggling today with either reading comprehension or depth of cultural knowledge. Either way, I could use some help.

          1. Mitch, I think you’re struggling because you don’t automatically fall back on your friend who knows everything.

            Just ask Mr. Google.

          2. Tried Googling. Read about the movie but couldn’t find this monologue and thus couldn’t figure out its context either. Any chance of a bigger, better hint?

  3. I’m sure the Libertarians are working hard to defeat a personal-rights-infringer such as Cuccinelli. Be a good demonstration if their independence from the Republican Party.


  4. Many years ago, my criminal procedure professor told a story. He always included in the course a brief lecture on prosecutorial discretion, and used the example of the laws against adultery. He would get the annual statistics from the office of court administration on prosecutions for various crimes and, invariably, there would be no adultery prosecutions. Until one year, when an adultery prosecution took place in a small, sparsely-populated upstate NY county. He called the DA and asked, essentially, “WTF”? Seems an influential local citizen demanded prosecution of his wife and her paramour. Why did the DA agree? “He had pictures,” said the upstate DA.

    1. Lawrence Walsh said during the impeachment of Clinton that during the Iran-Contra investigation they found a number of cases of adultery, when people’s testimony about where they were when turned out to be false. When they confronted the people, if they had their lover willing to testify under oath what was going on, the investigation dropped the matter. He said that they figured that the investigation was to find crimes against the public, not personal stuff. The Republicans must have been laughing, since the idea of boundaries has never been their strong suite.

      1. I understood the reference to be to the adulterers, though I suspect most DA’s still wouldn’t prosecute unless there were pictures of the DA too.

  5. Cuccinelli wants to preserve a Virginia Supreme Court ruling called Bottoms vs Bottoms. A lesbian woman named Sharon Bottoms had her kid taken away because she was a lesbian. The court said that was just fine because she was a felon under the crime against nature statute. Any repeal of CAN would render the ruling moot and protect gay people from having their kids taken away despite Lawracce vs. Texas. That’s why the religious right is fighting tooth and nail to keep this on the books.

  6. Mark,

    I didn’t get the point of your post or how it related to the topic. Not snark, just didn’t get the point. What was your point?

    1. Mitch, I think I can explicate Mark’s point by referencing you to my comment about Bill O’Reilly in the thread about him just above this one.

      I said O’Reilly is an oxymoron: he’s something of an idiot, even though he’s a bright guy.

      I lived most of my adult life in Virginia, and was thus exposed to constant day-to-day coverage of Cuccinelli over many years. I can assure you he’s only got half of my O’Reilly characterization; I’ve never credited him with being a bright guy. Cuccinelli seemingly has no idea when he’s reversed his previous position on the same issue, nor does he seem to be able to extrapolate to understand when his current position is at odds with some previously stated position on a different, but related, issue. His brain seems to be taxed to the max trying to elucidate his position-of-the-moment, without any reference to context, past history, and cultural or political implications. Finally, he seems to have no way to assess priority of his issues. To Ken Cuccinelli, everything is an “A” priority.

      Earl Weaver said (I think he was quoting some great football coach, but I don’t know who) “You can’t make every problem a matter of life and death. For one thing, you’ll be dead a lot.” I doubt Ken Cuccinelli ever heard that, or perhaps he just didn’t understand it.

      1. Obviously, I wasn’t very clear either. Cuccinelli is a mainstream Republican, espousing and advocating the same insane and idiotic beliefs as other mainstream Republican. But at this point, a Republican candidate parroting the John Birch Society line or even going beyond it is just “dog bites man”.

        My questions was more about how does what you say about Cuccinelli or what Mark says relate to the title of “Limits”? What does “limits” mean in this context?

        1. The point was simply that Cooch’s devotion to sexual purity as a political platform found its limit when it started to infringe on heterosexual adultery.

          1. Thank you. Point taken, although actually I don’t think it was so much the impingement on heterosexual adultery that bothered him as the fact that he feared that a large number of his biblethumping constituents might want to vote against him just in case he really meant it. I’m sure that if he could find a really good dog whistle to let his good, god fearing conservative voters know that he was only going to persecute godless liberal adulterers, that’d be his first choice

  7. The conservatives who say they want to amend the Constitution to defend traditional marriage need to word it thus:

    1. Dissolution of marriage shall not be granted by the United States or by any State except on the grounds of adultery, whereof one of the parties shall have confessed or been convicted in open court.

    2. The Congress shall have the power to enforce this Article through appropriate legislation.

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