Legal Memorandum: Forcible Sodomy in VA

Issue: Under Virginia law, what kinds of criminal sexual offenses may be imposed in a situation where there is sexual abuse of an individual with inadequate mental capacity?

“Forcible sodomy” occurs when a person “engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness, whether or not his or her spouse, to engage in such acts with any person and . . . the act is accomplished against the will of the complaining witness, by force, threat, or intimidation of or against the complaining witness or another person, or through the use of the complaining witness’s mental incapacity or physical helplessness.”  Va. Code Ann. § 18.2-67.1(A) (2014). “Penetration is an essential element of the crime of sodomy.”  Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E. 258, 261 (1998) (quoting Ryan v. Commonwealth, 219 Va. 439, 444, 247 S.E.2d 698, 702 (1978)). 

“[W]hether a defendant has employed the requisite force to support a conviction for forcible sodomy, ‘the inquiry is whether the act or acts were effected with or without the victim’s consent.'”  Emerick v. Commonwealth, Record No. 3042-02-3, *3-4 (Va. App. LEXIS 152 (Va. App. 2004) (quoting Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E. 2d 370, 372 (1979)).  Essentially, without “consent in fact,” the wrongful act itself contains the “force” required by law.  Id. (quoting Bailey v. Commonwealth, 82 Va. 107, 111 (1886) (superseded by Winfield v. Commonwealth, 225 Va. 211, 301 S.E.2d 15 (1983))).  “The Commonwealth need not demonstrate that the complaining witness cried out or physically resisted the accused in order to convict the accused of an offense under this article, but the absence of […]