Virginia Court of Appeals Affirms Sodomy Statute - Cruel and Unusual Punishment

Text of the ruling upholding ten appeals from criminal conviction for solicitation to commit oral sodomy in violation of Code §§ 18.2-29 and 18.2-361.

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IV. CRUEL AND UNUSUAL PUNISHMENT

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The appellants next contend that Code § 18.2-361 violates the prohibitions against "cruel and unusual punishment" contained in Article I, Section 9, of the Constitution of Virginia and the Eighth Amendment to the Constitution of the United States. They argue that the disparity between the punishment provided for sodomy and that provided for adultery or fornication effects the imposition of cruel and unusual punishment upon those convicted of sodomy. We disagree.

It lies within the province of the legislature to define and classify crimes and to determine the punishments for those crimes. Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582 (1921). No punishment authorized by statute, even though severe, is cruel and unusual unless it is one "prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience . . . ." Id. at 745, 109 S.E. at 588. We find our consciences shocked neither by appellants' sentences nor by the five-year maximum sentence provided by the statute. Therefore, we find no imposition of cruel or unusual punishment.