ARLINGTON, Virginia — The Virginia Court of Appeals has overturned an Arlington County judge’s decision to dismiss the loitering charges against registered child sex offender Richard Cox, sending the case back to Arlington County Circuit Court.
An Arlington County judge had dismissed the case earlier this year, but an appeal from state prosecutors revived the unusual case.
Cox is facing a slew of charges in Virginia’s 17th Judicial Circuit Court, including indecent exposure, indecent liberties with a child, and loitering in relation to entering female locker rooms across Arlington County. Cox, who is a biological man, identifies as transgender and was able to enter these locker rooms because Arlington County policy allows people to use facilities that match their gender identity rather than their biological sex.
Despite being appointed a public defender, Cox has waived the right to an attorney and is self-representing on several charges. Cox had argued Virginia’s loitering law was unconstitutionally vague because it does not specifically define the word “loitering.” Arlington County Circuit Court Judge Daniel T. Lopez agreed and dismissed the charges back in March. The Commonwealth appealed, putting the trial on pause.
The unpublished opinion from the Court of Appeals of Virginia, obtained by the Washington Examiner, does not contain an opinion on whether the loitering law is constitutional. Instead, the appeals court ruled Lopez used the wrong legal process when he struck down the law.
The problem wasn’t necessarily what Lopez decided, but how he got there, the appeals court said.
Lopez dismissed the charges without first determining whether the law was unconstitutional as applied to Cox. In other words, the judge needed to first determine whether the law was unconstitutional in the context of Cox’s specific conduct in the locker rooms.
The appeals court said that question must be answered before a court can decide whether the law is unconstitutional in every situation.
“[A] court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law,” Judge Dominique A. Callins wrote in the opinion.
The appeals court also said that just because Virginia’s statute does not define “loitering,” it does not automatically make the law unconstitutional.
“The circuit court can and should look to precedent and dictionary definitions when ascertaining the ordinary and plain meaning of ‘loitering,’” Callins wrote.
Still, prosecutors are far from making the loitering charges stick.
The appeals court did not rule the law is constitutional as applied to Cox.
“The circuit court erred in not conducting the proper analysis to determine whether Code § 18.2-370.2 was unconstitutional as applied to Cox,” Callins concluded. “Thus, we reverse the circuit court’s judgment and remand for proceedings consistent with this opinion.”
The appeals court opinion says police were initially called to Washington-Liberty High School on Oct. 21, 2024, after reports of “an individual with male genitalia standing naked, with an erection, in a shower inside the women’s locker room.” Police later identified Cox as the person inside the locker room and determined Cox had signed into nine different Arlington Public School facilities in one month alone.
Cox was later arrested at Barcroft Sport and Fitness Center. Witnesses claim Cox, who is still a fully intact male, would walk around the locker room naked for hours in front of young girls. Police found evidence on Cox’s phone that Cox had highlighted children’s swim lessons and gymnastic classes on recreation center schedules.
The Washington Examiner also obtained body camera footage showing police responding to complaints about Cox entering women’s locker rooms at recreation centers in Fairfax County. Although Cox had been banned from entering the facilities countywide, the 58-year-old was never charged by Fairfax County Commonwealth’s Attorney Steve Descano, a progressive backed by liberal mega-donor George Soros.
Cox argued, as a homeless person who used public facilities to maintain hygiene, that simply being in those facilities as a transgender person was not illegal. Instead, Cox argued that this is discrimination and a violation of the First Amendment.
The case will now return to Arlington County Circuit Court. Judge Lopez has already ruled that Cox can self-represent on some of the charges and question witnesses during the trial.
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The trial was originally scheduled to begin April 20, but was postponed while prosecutors appealed the judge’s decision to throw out the loitering charges. Once rescheduled, the trial is expected to last 10 days.
Cox was found guilty of a second or subsequent offense of possessing child pornography in February and currently resides in the Arlington County jail.