Virginia Court Strikes Down Law Against Sex By Singles

WFTV ^ | 1/14/04

[KidGlock]

Virginia Court Strikes Down Law Against Sex By Singles

POSTED: 4:20 pm EST January 14, 2005

RICHMOND, Va. -- The Virginia Supreme Court on Friday struck down an archaic and rarely enforced state law prohibiting sex between unmarried people.

The unanimous ruling strongly suggests that a separate anti-sodomy law in Virginia also is unconstitutional, although that statute is not directly affected. The justices based their ruling on a U.S. Supreme Court decision voiding an anti-sodomy law in Texas.

"This case directly affects only the fornication law but makes it absolutely clear how the court would rule were the sodomy law before it," said Kent Willis, executive director of the American Civil Liberties Union in Virginia.

Virginia's anti-sodomy law prohibits oral and anal sex even for married couples, but gay-rights advocates say the statute is only used to target homosexuals. Legislators for years have rejected efforts to repeal the law. They left it on the books again last year even after the Texas decision held that such laws are unconstitutional.

"It's a strong message to legislators that they must repeal Virginia's sodomy law," Willis said. "Now both the U.S. Supreme Court and the Virginia Supreme Court have spoken on essentially the same issue."

The court said that "decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationships that are entitled to due process protection."

The ruling stemmed from a woman's lawsuit seeking $5 million in damages from a man who infected her with herpes. She claims the man did not inform her that he was infected before they had sex.

Richmond Circuit Judge Theodore J. Markow threw out the lawsuit, ruling that the woman was not entitled to damages because she had participated in an illegal act. The Supreme Court reinstated the lawsuit.

The law against fornication had been on the books since the early 1800s but was last enforced against consenting adults in 1847, according to Paul McCourt Curley, attorney for the defendant in the lawsuit.

Curley said he sees nothing wrong with having laws on the books, even if they are unenforced, that say "these are the ideals and morals of the state of Virginia." He said the ruling sends a message that virtually anything goes -- even adultery -- as long as sex is consensual.

However, the justices noted that their ruling "does not affect the commonwealth's police powers regarding regulation of public fornication, prostitution, or other such crimes."

[KMC1]

What is Virginia coming to?

[NJ_gent]

Thank you for keeping the government out of my bedroom. Uncle Sam shouldn't be a peeping Tom, imho.

[TRY ONE]

"What is Virginia coming to?"

Next thing you know they'll be smoking and spitting tobacco on the sidewalk!

[Texas Federalist]

Those darn Virginians with their make-out parties.

[Celtjew Libertarian]

Virginia is for Lovers!

[Celtjew Libertarian]

Well, everyone has to admit that it was a law more honored in the breach....

[adam_az]

However, the justices noted that their ruling "does not affect the commonwealth's police powers regarding regulation of public fornication, prostitution, or other such crimes."

Giving it away for free is legal, but charging for it isn't. Sheesh.

[Pan_Yans Wife]

ping

[Trinity_Tx]

Their senses? lol

[Joe 6-pack]

"What is Virginia coming to?"

Reminds me of the one about the Amish disapproving of sex outside of marriage because it may lead to dancing....

[July 4th]

Too bad, really. Sex is always more fun when you're breakin' the law...

[July 4th]

Oh man, can my last post be taken a number of really BAD ways... (smacking forehead...)

[tenthirteen]

I'm sure there are those who would say this ruling sucks.

[balch3]

So much for conservative Virginia.

[NJ_gent]

"Giving it away for free is legal, but charging for it isn't. Sheesh."

That's not true - so long as you tape record the acts and then sell the videos, it's perfectly legal to pay a woman for sex. That makes you a 'film maker'.

To recap, you can give your body away to whomever you please, but you cannot sell it; unless it's being filmed with the intention to make money from the copies of the original film. That clears it right up and makes perfect sense; right?

[Question_Assumptions]

I doubt that you'll find may prosecutions that involved anyone looking into anyone else's bedroom when they keep the door closed and the curtains pulled. It's more likely that most prosecutions involve these activities being performed in public places.

[July 4th]

A lot of places try to leave laws like this on the books so they can get people on something if all of the other charges dry up. Like if the cops busted in on a drug dealer having sex with another woman (not his wife), but if the drugs were somehow excluded at trial. Then you'd actually prosecute the charge.

In Wisconsin, we do that all the time with the bail jumping charge. It rarely gets charged, unless it's the only thing that the prosecutor can make stick.

[NJ_gent]

"I'm sure there are those who would say this ruling sucks."

Yes, that'd be the 'conservatives of convenience' who are only conservative insofar as it allows them to push their agenda. They're all for limited government when that government threatens to prevent them from pushing that agenda. The moment Big Government can do something for them, like step in and regulate the sex life of strangers, they implode to expose their true (liberal) nature.

Government is not the solution to our problems...

[StoneColdGOP]

Ha ha... yes it can!

[speed_addiction]

I am glad this is not the law in Texas. At least a couple of dozen ladies could have the goods on me since I got out of prison three years ago. ;)

[weegee]

You can have sex with a minor if (A) both participants are minors, (B) the adult and minor are within 3 years of age, or (C) the age of consent is below 18.

However if you photograph or videotape "the act" then you have committed a crime.

Somehow taking a picture of it is worse than actually doing it. Except as you note when it comes to paying a person for sex...

----

Society knows right from wrong but tries to make excuses for bad behavior.

[the invisib1e hand]

Thank you for keeping the government out of my bedroom. Uncle Sam shouldn't be a peeping Tom, imho.

oh, that sounds so sophisticated, so urbane, so enlightened.

when was the last time "uncle sam" peeped into your bedroom? (Hide the sharp objects, sir).

[SoDak]

What's next? Dancing?

[weegee]

I stand opposed to judicial tyranny. Let the legislature overturn the law, not the courts. It is only being done away with now to set the stage for further legislating from the bench.

[NJ_gent]

"It's more likely that most prosecutions involve these activities being performed in public places."

Then you prosecute the offenders for breaking the real laws they've broken - lewd acts in a public place, indecent exposure, etc. Also, are you saying that it should be perfectly legal for a married heterosexual couple to have sex in public places? I know you're not - it just goes to show the true intended purpose of these types of laws: regulation of personal intimate relationships. If that isn't about the last thing government should be doing, I really don't know what is.

[spodefly]

This is a law that I have broken thousands of times, although not in Virginia. I believe Georgia has (or had) a similar law.

[weegee]

The law against fornication had been on the books since the early 1800s but was last enforced against consenting adults in 1847

Statutory rape laws no longer are applied to minors under the age of consent. A fornication law could have still been used to prosecute the offenders.

"consenting adults" is bunk, same sex sodomy is just as legal for minors as for adults (some states used to set the bar at 18 for homosexual acts, but the Supreme Court's Lawrence v. Texas decision did away with that).

[grey_whiskers]

I was just waiting for someone to post...
waiting for it...

"The Virginia Monologues!"

[k2blader]

You are right.

But supporters of promiscuity will not see it that way.

[NJ_gent]

"It rarely gets charged, unless it's the only thing that the prosecutor can make stick."

If the only way a prosecutor can get someone is to make use of a BS, completely unconstitutional law, then he doesn't deserve to get the guy in the first place. Using false charges to cover up for the failure to make real ones stick is precisely the sort of BS done in China, North Korea, and every other country that stinks. We're better than that, and we should act like it. :-)

[Professional Engineer]

Ya'll are a bunch heathens aren't ya'?

[NJ_gent]

Which brings up the new and interesting use of child pornography laws: prosecuting children who take nude pictures of themselves. It's happened a number of times recently. Be it right or wrong to prosecute them, it's still completely bizarre. :-)

[Trinity_Tx]

"I'm sure there are those who would say this ruling sucks."

No doubt. Unfortunately, those sorts of people abound...

Maybe it's a form of jealousy, maybe just issues of control, but for some reason, they feel they have the right, if not the obligation, to take away the free will of others to simply "sin".

Even Jesus didn't do that.

[Corin Stormhands]

Yes, but we do it with style.

[ßuddaßudd]

That law (among others) was the reason left the Old Dominion. Now I can return without fear of persecution. I'm comin' back baby!

[NJ_gent]

"Let the legislature overturn the law, not the courts. It is only being done away with now to set the stage for further legislating from the bench."

I do agree to an extent, and I absolutely agree that no court should write new law. That said, I also must agree with the judicial review concept, as it does seem to naturally flow with the checks and balances set up for our government's branches. So long as the ruling is restricted to striking down the law, as opposed to creating new law, I can probably go along with it. Should the legislature feel that strongly opposed to this ruling, it does indeed have the ultimate authority to pass an amendment to the state constitution which would overrule the court's decision.

[Question_Assumptions]

My point is simply that these laws are not really used as an excuse to peek into private bedrooms. They tend to get used when people step way out of bounds. I agree that it makes a lot more sense to focus on lewd behavior in public, regardless of the sexes involved, and that's what I'd personally prefer. But the reson why people aren't more agitated by these laws is exactly beause the police don't abuse them.

[NJ_gent]

"oh, that sounds so sophisticated, so urbane, so enlightened."

Thinly-veiled personal attacks notwithstanding, you've yet to present an argument or express a thought. Would you care to add something to the discussion?

[Ignatius J Reilly]

keeping government out of our personal lives and decisions is not a conservative value?

[weegee]

That they still uphold the constitutionality of laws against prostitution shows an unequal application of law.

You can pay a woman to dance. You can pay a woman to be an escort and go out in public. You cannot pay her to have sex but you can have sex with any willing woman in a bar and you can even buy her drinks.

You can pay a minor to provide unlicensed child care in your home in violation of payroll taxes and child labor laws if you call her a babysitter, but you cannot pay a woman to have sex (unless you film it, which costs extra and requires a binding contract or at least a release and proof of age/identity).

The law is a ass.

When "unmarried fornication" was a crime and adultery was a crime, all extramarital sex was a crime whether you paid the participant or not.

[weegee]

There are some prosecutions of minors who have sex together. The law only makes the distinction (at least in Texas) that if one participant is a minor, the other participant must be with 3 years of age. An 11 year old and an 8 year old are not "the same" but meet the standard under the law.

You will still see occassionally prosecution of minors for "child molestation" when actually it is all statutory rape (the victim is UNABLE to legally give consent, regardless of the age of the perpetrator).

[NJ_gent]

"My point is simply that these laws are not really used as an excuse to peek into private bedrooms."

Then it's either a law that's useless (due to unenforcability), or it's a law which is selectively abused to add redundant charges in violation of the double jeopardy clause of the US Bill of Rights. Why not make it illegal to have sex on certain days of the week? That way, if someone gets caught doing something bad on one of those days, but we can't get real charges to stick, we can start hunting around for any other laws to get them with. Personally, I think our laws should never be used as 'gotcha's for when real justice isn't presently attainable. Perhaps, if when we find someone doing something bad but can't charge them, we can dig through their lives and hold them in custody until we can find some evidence, some place, that they broke some law at some time. With all the laws on the books these days, it's getting pretty difficult to make it through the day without doing something that's technically against the law.

"They tend to get used when people step way out of bounds."

Then again, let's just charge people with the crimes they've actually commited instead of packing on a dozen other infractions that shouldn't be on the books to begin with?

"I agree that it makes a lot more sense to focus on lewd behavior in public, regardless of the sexes involved, and that's what I'd personally prefer."

So then let's agree that the court was correct in striking down a fundamentally flawed law which was unnecessary to begin with?

"the reson why people aren't more agitated by these laws is exactly beause the police don't abuse them."

I don't really care about the laws either, so long as they aren't being enforced. However, when people pipe up to defend a law that had no place on the books, I do indeed respond. :-)

[NJ_gent]

"The law is a ass."

I'm pretty sure that's what this entire thread is going to boil down to. ;-)

[Andrew LB]

I cannot believe they actually had this law on the books on this day in age.

Relationships are like buying a car... no way am I going to buy one without going for a test drive. :)

[TOUGH STOUGH]

"The moment Big Government can do something for them, like step in and regulate the sex life of strangers, they implode to expose their true (liberal) nature."

Did you READ the article? This law has been in effect since the early 1800's. There are NO conservatives crying for NEW legislation, or the enforcement of this old legislation as your post suggests.

As a symbol of the morality this nation has strived to achieve throughout most of it's history, I am sorry it was struck down.

Now don't dare try to make the LIBERAL argument I am interested in PEEPING in people's bedrooms, I'm not. I am sick of our tax dollars paying for children out of wedlock, abortion, birthcontorl and the like.

[TOUGH STOUGH]

You really are a slob. If that test drive is a little more successul than you bargained for, make sure YOU foot the bill.

[Question_Assumptions]

I don't really like the courts overturning laws for the same reason why you don't like silly laws being used as a gotcha. It puts the law in the hand of the opinion of a few people concerning what they think is right or wrong. Courts shouldn't be overturning legislature on "We don't like this!" grounds any more than police should be arresting gays on "We don't like you!" grounds. I'd rather someone show some guts and try to change the law legislatively.

I will, however, admit having some sympathy with law enforcement officials with an important caveat. There are often times when a law enforcement officer knows that someone has done something wrong but can't prove it, either because the hard evidence is lacking or because of police procedures. Yes, this sometimes lets really awful people get off the hook (e.g., everyone pretty much knows that OJ was guilty). On the other hand, giving police the tools to make random arrests almost any time they want can lead to Dan Rather-like situations where the police "know" a person is guilty and act on it without real hard evidence but are wrong and wind up hurting an innocent person.

[Question_Assumptions]

Relationships are like buying a car... no way am I going to buy one without going for a test drive.

I think I'd be quite happy to buy a car without a full test drive if giving a car a full test drive could (A) give me an incurable STD like HPV, Herpes, or AIDS, (B) could slap me with a paternity suit, or (C) really increased the odds that the car I'm ultimately going to wind up buying isn't new but has been driven long and hard by a lot of other drivers and comes with kids already seated in the back seat.