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The Virginia Supreme Court Strikes Down the State's Fornication Law,
Indicating that Other States' Antiquated Laws Will Fall if Challenged

Tuesday, Jan. 25, 2005

As this long history and lack of enforcement indicates, fornication laws are a relic of a past in which most non-marital sexual conduct was considered criminal behavior. Yet laws still persist on the books in about twenty percent of the states.

Virginia was right to invalidate such an antiquated law, and other fornication laws, if challenged in court, are very likely to be invalidated as well.

Martin v. Ziherl: The Case Testing Virginia's Fornication Ban

In 2003, Muguet Martin filed a complaint against her ex-lover, Kristopher Ziherl, for allegedly transmitting genital herpes to her through sexual intercourse. She alleged that he knew he was infected with the incurable disease when the couple engaged in unprotected sexual conduct, and failed to inform her of his condition. She filed a tort suit, seeking damages for negligence, battery, and intentional infliction of emotional distress.

Ziherl filed a demurrer - a legal pleading that says even if the facts alleged are true, there is no legal theory to permit recovery. He cited a 1990 case, Zysk v. Zysk, in which the Virginia Supreme Court had refused to allow recovery for injuries suffered while participating in an "illegal" activity. And he also cited Virginia's law banning fornication - defined as sexual intercourse by an unmarried person with any other person. (Fornication under Virginia law is a misdemeanor and a violator could incur a fine of up to $250.)

Since fornication is a crime in Virginia, Ziherl argued - a crime that both he and Martin were committing -- she should not be able to recover in tort for any injuries flowing therefrom. Since she was participating in an illegal activity, he contended, she should not be able to recover damages for her injuries - any more than, say, a bank robber could recover if his colleague broke his nose in the course of their joint bank robbery.

The trial judge agreed with Ziherl and granted the demurrer. But on appeal, the Virginia Supreme Court reversed, and let Martin's case go forward.

The Holding of Lawrence: A Right of Adults to Engage in Private Sexual Conduct

Before considering how the two relevant legal sources - the Zysk case and the Virginia criminal statute - interacted, the Virginia Court first asked a more basic question: Is the Virginia criminal statute constitutional? In the end, the court answered no - based on the Supreme Court precedent of Lawrence v. Texas.

Specifically, Lawrence concerned the validity of a law criminalizing same-sex sodomy. But in striking the law down, the U.S. Supreme Court spoke eloquently - and more generally -- about the nature of the interest infringed by that statute.

Indeed, the Supreme Court framed the case, quite broadly, as asking "whether the petitioners were free as adults to engage in the private conduct [at issue] in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."

In a famous 1986 opinion, Bowers v. Hardwick, the Court had upheld Georgia's criminal sodomy law. In Lawrence, the Court reversed course - stating that Bowers was wrong when decided, and still wrong seventeen years later.

Bowers - the Court made clear - had incorrectly permitted states the right to interfere with intimate relationships, something that substantive due process principles do not allow.

(The doctrine of "substantive due process," when applied to the States, derives from the Due Process Clause contained in the Fourteenth Amendment. Under the Due Process clause, certain state actions that deprive persons of life, liberty or property must be accompanied by certain processes; for instance, some deprivations of property cannot occur without prior notice and a hearing. But for certain state actions, the Court has ruled, no amount of process is enough. Here, the Court has said, the way to honor due process is, substantively, to forbid the deprivation.)

The Lawrence court concluded, instead, that the constitution protects the right of adult individuals to conduct consensual personal relationships "in the confines of their homes and their own private lives." This right includes the "overt expression" of the relationship in "intimate conduct."

The majority in Lawrence paid homage to the dissent in Bowers by adopting Justice Stevens' analysis as the controlling law. In his Bowers dissent, Justice Stevens had emphasized two points.

First, Stevens argued, morality - even a longstanding view that a practice is immoral -- is not a sufficient justification to uphold a law prohibiting particular conduct.

Second, he argued, individual decisions by married and unmarried persons about "intimacies of their physical relationship, even when not intended to produce offspring" are a form of "liberty" under the Due Process Clause.

Applying Lawrence's Holding to the Virginia Fornication Statute

The court in Ziherl held that the principles stated in Lawrence were applicable to the Virginia fornication statute - and necessitated that the statute be struck down as unconstitutional.

To begin, the court noted that the protected "intimacies" first referred to by Justice Stevens - and later embraced by the majority in Lawrence - must include "the specific act of intercourse . . . between two unmarried persons." In other words, the very act defined as a crime by the Virginia statute was protected as part of the right to liberty in Lawrence.

The Virginia court considered the "public reasons" Ziherl offered to justify the fornication ban - to protect the public health and to encourage that children be born into marital families. (Ironically, the interest in protecting the public health is served both by upholding the ban on fornication - and thus deterring nonmarital sexual activity - and striking it down - and thus deterring the negligent transmission of venereal disease by imposing legal liability for such conduct.) But, under Lawrence, such reasons are clearly insufficient to justify a governmental intrusion on personal liberty of this kind.

Although fundamental rights usually trigger the highest level of judicial scrutiny, the Supreme Court in Lawrence concluded that a ban on same-sex sodomy could not survive even the lowest form of constitutional review. The Court held that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Virginia had no greater interest in banning fornication than Texas did in banning sodomy.

The court thus struck down the Virginia law, and sent the case back for trial of the original tort claim. Since the law had been struck down, the conduct by Ziherl and Martin was no longer illegal. Thus, Martin's suit against Ziherl was no longer barred by the participation of the plaintiff in "illegal" activity. Rather than engaging, together, in a crime, the two had engaged, together, in an exercise of one component of individual liberty - the liberty of consenting adults to engage in private sexual conduct.

Thus, while Muguet Martin, unfortunately, is left with a case of genital herpes, she is also left with a lawsuit - one that raises the possibility that she can recover damages from the man who she alleges infected her. Since the mid-1980s, courts have been willing to apply conventional tort principles to permit recovery based on knowing exposure of a sexual partner to the herpes virus.

The Likely Fate of Fornication Laws in Other States

Will other states' fornication laws meet the same fate as Virginia's? To see why the answer is yes, a bit of background is useful.

A decade ago, more than one-third of the states still had criminal bans on fornication. The laws were seldom enforced, but remained on the books nonetheless.

Fornication laws did have their day, though. According to historian Cornelia Dayton (as cited in an article by law professor Anne Coughlin), fornication comprised the single largest part of the criminal docket in New England from 1690 to 1760.

And, much more recently, many states actively enforced criminal bans on fornication during the anti-vice era of the 1920s and 1930s. So-called "crimes against morality" including fornication, adultery, bastardy, and abandonment occupied a notable portion of most local criminal dockets. (This history is described in greater detail in a prior column I wrote for this site.)

Interestingly, six months before Lawrence was decided, the Georgia Supreme Court struck down that state's fornication law. It did so on similar grounds to those that would subsequently be elucidated by the U.S. Supreme Court.

Though not usually thought of as a legally progressive state, Georgia was slightly ahead of the curve, at least among the states with fornication laws, on this issue. Later, in the wake of Lawrence, legislatures in other jurisdictions such as Arizona and the District of Columbia repealed their unused fornication laws.

In Utah, a challenge to the state's fornication and sodomy laws was filed the day after the opinion in Lawrence was handed down. But the court dismissed it for lack of standing - that is, lack of a plaintiff who had suffered actual injury -- since the individual raising the challenge had neither been prosecuted nor threatened with prosecution under either law. The Attorney General filed a statement, though, indicating that the law would not be enforced against consenting adults.

With Virginia's law now invalidated, only 12 or so states today continue to criminalize fornication. Their laws, however, are equally doomed, under Lawrence - for just the reasons the Virginia court gave.

And rightly so: As I've argued in a previous column, such laws simply cannot be defended under the modern interpretation of the Due Process Clause. As the Virginia court said in Ziherl, there is no "relevant distinction" between a law banning sodomy - such as the one that Lawrence struck down -- and a law banning fornication. Both "improperly abridge a personal relationship that is within the liberty interest of persons to choose."

(As a side note, Virginia still has an anti-sodomy law. But the law is certainly invalid. Not only the U.S. Supreme Court's opinion in Lawrence, but also the opinion of the state's own high court in Ziherl, ensure that.)

Lawrence's Only Certain Implication Is to Invalidate Sodomy and Fornication Laws

What about other laws regulating private, consensual, sexual conduct? Justice Scalia's dissent in Lawrence predicted the demise of all such laws--including "state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity". He certainly overstated Lawrence's intended scope, and he probably overstated its eventual reach as well.

In truth, laws against sodomy and fornication are the only sex laws that do not implicate any of the boundaries the Supreme Court tried to limn in Lawrence. The Court strongly suggested that laws affecting the institution of marriage, involving minors, or involving sexual activities that are conducted in public or for commercial purposes would not be within the bounds of the "private relationships" protected by the Fourteenth Amendment - and thus will not be struck down under a Lawrence-like analysis.

Putting sodomy and fornication laws aside, adultery laws are the most vulnerable to challenge. In the twenty-some states that still criminalize adultery, the law goes largely if not totally unenforced - but occasionally, a possible test case does arise.

Virginia, like many other states, also outlaws adultery, and, just a year ago, a man was criminally charged with adultery (a case I've written about in an earlier column). In that case, the defendant pled guilty (although the charges were withdrawn pending appeal) rather than challenging the law. But any future prosecution would certainly meet with a constitutional challenge.

Although adultery does affect the institution of marriage, it is not clear that a criminal ban on the practice does much to protect marriages generally or in particular cases. Many spouses cheat, few probably realize that it is criminal behavior, and almost none are charged under applicable laws. And to the extent an adulterous affair is conducted in private, it may well fall within the bounds of the private, intimate relationships with which the government is not supposed to interfere.

Bigamy, in contrast, more directly jeopardize the traditional institution of marriage, and more than morality is in play. Recordkeeping by states, the safety and well-being of children, and the stability of the family unit are all potentially implicated by bigamous relationships.

Those factors don't make bigamy laws immune from challenge, but they provide some defense to a Lawrence analysis. Bigamy also finds no widespread tradition of tolerance, either in our country's recent or more distant past.

Prostitution laws are probably safe. The potential for public health hazards and the exploitation of women provide such laws with plausible justifications. Moreover, the decision to sell sex to a stranger (or buy it, for that matter) is unlikely to be considered by the courts to be one of the deeply intimate choices adults make in private relationships.

That leaves us with same-sex marriage - and Lawrence is only one of the relevant factors in predicting the survival or demise of such bans. Only time will tell their fate.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University, currently visiting at the University of North Carolina School of Law. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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