Contrary to the defendant’s argument, Code § 18.2-361(A), relating to “carnal knowledge with a brute animal,” is not an unconstitutional prohibition on the private sexual conduct of consenting adults, either facially or as applied to the defendant’s actions.
The Supreme Court’s decision in Lawrence v. Texas didn’t necessarily prevent states from criminalizing sexual conduct involving something other than consenting adults in private; e.g. the defendant’s involvement of a dog in his sexual encounter with another person. If Lawrence didn’t facially invalidate the anti-sodomy provision of then Code § 18.2-361(A), it defies logic that it facially invalidates the bestiality portion of the statute. Because there are constitutional applications of the Virginia bestiality statute, the defendant’s facial challenge to Code § 18.2-361(A) fails.
As to his challenge to the statute as applied, the right he asserts as “the right [of adults] to engage in consensual private conduct without intervention of the government” is actually a right to engage in bestiality. Code § 18.2-361(A) doesn’t place any limitation on the rights of consenting adults to engage in private, consensual, noncommercial, sexual acts with each other; it only prohibits sexual conduct involving a “brute animal.” The conduct at issue here involved sexual activity with a dog. The addition of the dog fundamentally alters the equation, and thus, the claimed right is broader than the right of consenting adults to engage in noncommercial sex acts in private.
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. Virginia’s ban on bestiality is rationally related to its interest in preventing cruelty to animals and in protecting public health.