863 S.E.2d 483
Va.2021Background:
- Terry Antonio White pleaded guilty to felon-in-possession; the Fourth Circuit certified a question to the Virginia Supreme Court asking whether, under Virginia common law, threatening to accuse a victim of sodomy can support a robbery conviction.
- Virginia has no statutory definition of robbery; robbery is a common-law offense in Virginia and four prior Virginia Supreme Court opinions (Houston, Maxwell, Falden, Fleming) recognized that threats to accuse of sodomy constitute "constructive violence" sufficient for robbery.
- English common-law authorities and Old Bailey reports (e.g., Jones, Donnally) historically treated accusations of crimes against nature as producing fear equivalent to physical force; 19th-century Virginia treatises echoed that doctrine.
- Modern Virginia statutes still criminalize various "crimes against nature," so the exception applies only where the threatened accusation would be of an offense punishable under the law at the time.
- The Virginia Supreme Court reaffirmed the doctrine: because the General Assembly has not plainly abrogated it, threatening to accuse a victim of an extant crime against nature can, under Virginia common law, support a robbery conviction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether threatening to accuse a victim of sodomy can constitute robbery under Virginia common law | White: such threats are "constructive violence" and satisfy robbery's fear element | United States: ACCA requires threatened use of physical force; robbery must involve physical force | Yes — Virginia common law recognizes the sodomy-accusation exception when the accusation concerns an extant crime against nature |
| Whether statutory extortion or other statutes have abrogated the common-law sodomy exception | White: common law remains unless legislature plainly changed it | United States: statutory extortion supplants or makes the exception obsolete | No — extortion statute did not plainly abrogate the common-law rule; both can coexist; the doctrine remains intact |
| Whether the English "sodomy exception" was adopted before Virginia's reception of English common law (reception date issue) | Implicit: rely on existing Virginia precedent recognizing doctrine | Some Justices questioned whether the exception postdated reception and thus was not received | Court declined to decide the reception-date question; a concurrence noted the issue but concurred in result based on stare decisis to state precedents |
Key Cases Cited
- Houston v. Commonwealth, 87 Va. 257 (recognizing threat to accuse of sodomy as "constructive violence" sufficient for robbery)
- Maxwell v. Commonwealth, 165 Va. 860 (reaffirming the sodomy-accusation robbery doctrine)
- Falden v. Commonwealth, 167 Va. 542 (same)
- Fleming v. Commonwealth, 170 Va. 636 (same)
- Toghill v. Commonwealth, 289 Va. 220 (describing modern statutory "crimes against nature")
- United States v. White, 987 F.3d 340 (4th Cir. 2021) (case that triggered the certified question to the Virginia Supreme Court)