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."

[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.

[TOUGH STOUGH]

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

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

The Invisible Hand.

And so old! I been listening to liberals make THAT argument for 25 years. It didn't work on me then and won't work on me now!

[NJ_gent]

"There are NO conservatives crying for NEW legislation, or the enforcement of this old legislation as your post suggests."

I was speaking in general, and was speaking to the drive to preserve laws that seek to allow government to regulate what happens in the bedrooms of American citizens.

"As a symbol of the morality this nation has strived to achieve"

Government laws do not achieve morality; individuals, families, and communities do. It is not the striking down of laws like this that bring about our present-day immorality; but rather, it's the collapse of families and communities under the strain of modern society. Without strong moral backing, the youth of today falls prey to the culture of excess and irresponsibility. Judges and Congressmen can't prevent parents from instilling good moral values in their children; only parents can do that. Unfortunately for all of us, far too many parents these days are choosing that path. We're all paying the price for it.

"I am sick of our tax dollars paying for children out of wedlock, abortion, birthcontorl and the like."

Then your problem is not with what this law was against, but rather with government overtaxation and wrongful subsidization. I agree entirely with you, and would gladly bring back Jefferson for a couple weeks so he can go through our modern government with a fine-tooth comb to rid us of all the garbage that's been packed into it over the centuries. Starve the government of its monetary intake and we'll see the problems we all have with government subsidies and welfare disolve in no time. Let's start by eliminating the income tax (with no replacement) and go on from there.

[Trinity_Tx]

You say you don't want it enforced, but do you really think its being there as a symbol only has made you have to pay any less in taxes for "children out of wedlock, abortion, birthcontorl and the like." ?

Please don't call me a slob too, I'm just asking. lol

[BlazingArizona]

"What is Virginia coming to?"

Virginians having sex? It's going to lead to radar detectors!

[TOUGH STOUGH]

"Government laws do not achieve morality; individuals, families, and communities do."

Ah, yes. I first heard that argument 25 years ago from LIBERALS at Penn State.

Laws help to achieve and support morality all the time and always have. Once something is LEGAL whether it is in fact morally wrong, people begin to think it's okay, or at least not as wrong as they originally thought and are more likely to engage in it, which is one reason the abortion rate is so high. If you don't understand THAT, you don't understand much about human nature.

[NJ_gent]

"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 don't want to see the courts overturning any law without the decision being firmly grounded on constitutional principles. Part of the problem is that a state's constitution, and indeed even the Federal Constitution, can honestly say different things to different people. We have 'commerce clause' arguments on here all the time, and this is a site of folks who are mostly pretty close to one another on the political spectrum. If even we can't agree on constitutional matters, then it's inevitable that some of us will disagree strongly with the decisions (and the logic behind those decisions) of courts when dealing with constitutional questions. So long as a court isn't writing new law, and has firmly based its decision on the appropriate constitution, then I might disagree with the decision, but still agree with the authority used to make that decision. In this particular case, I agree with both.

Ditto to the rest of your post as well. As much as we'd all like to see 100% justice in our nation, we all know that it's simply not realistic. We can either give the police near-total control (as they have in some countries), or we can honor the legacy of freedom we have here. Personally, I'm much happier being more worried about criminals than government agents. I do not look forward to a time when that's reversed. I think we have a system that keeps us pretty close to equillibrium, between police powers and citizens' rights, and I think our efforts should be to continue that equillibrium until someone can come up with the 'perfect' system to replace our's.

[Question_Assumptions]

It's honestly my feeling that a healthy society needs to swing gently between "a little too much police power" and "a little too much individual freedom" to stay on course. I think we're nearing the part of the swing that produces "a little too much individual freedom" and are close to taking a gentle swing back. No, I don't want things to swing too far toward the individual liberty side because I don't want to see the backswing toward police power that would result.

The reason things swing is because there are obvious flaws with each state and people swing in one direction as a cure for the other problem until the way they are swinging becomes an even bigger problem. Libertarians like to assume that one should never sacrifice liberty for security but civilization, itself, was essentially making that sacrifice. Even libertarians concede that people must restrict their liberty so that it does not infringe on the basic rights of others, thus sacrificing liberty for security. What's really the issue is finding the balance between the two and I don't think that's ever a stable state. Even if we achieved the libertarian Nirvana of individual freedom, the problems it would produce would create pressure toward more restrictions, which is why we wound up with all of those restrictions in the first place.

[NJ_gent]

The purpose of government is not, has never been, and never will be to legislate morality. The purpose of government is to secure the rights of citizens. Among the rights it is to secure are: the right to live, the right to live as freely as possible insofar as the rights of others are not violated, and the right to live one's life in the manner one chooses. Any action or law contrary to that is destructive to the purpose of government.

If you honestly believe that government is more important to the installment of values and morality than families, then I tend to wonder what purpose you must believe families serve. Certainly government can provide for all their bodily needs (with our tax dollars, of course). See, I don't think government is very good at raising children or figuring out questions of morality. Families, however, tend to be remarkably good at raising children when the parents make the effort to do so. The one thing government does with children in an outstanding fashion is to churn out dysfunctional automatons with no moral or ethical backing. If believing in families over government makes me a liberal in your eyes, then feel free to label me however you like. Anyone who needs a law to tell them right from wrong is an idiot. I seriously doubt it takes a law degree to figure out that theft, rape, and murder are wrong.

"Once something is LEGAL whether it is in fact morally wrong, people begin to think it's okay, or at least not as wrong as they originally thought and are more likely to engage in it, which is one reason the abortion rate is so high. If you don't understand THAT, you don't understand much about human nature."

What I understand is that it's pretty darn easy to get an abortion these days. You seem to think, however, that Roe flipped a light switch in the minds of millions of women who suddenly went from 'abortion is murder' to 'abortion is next Thursday at 8am'. That would further assume that millions upon millions of women would have run out for abortions in the 20s and 30s if only it were legal. I find this to be an unbelievably simplistic view of society and human psychology.

The most simplified explanation for the abortion rates we see today that I can accept follows from the many factors of families not being cohesive units as they once were, children being left to raise themselves, abortions being easily obtained and even encouraged, and the general lack of moral backing and common sense that would have prevented many of the situations that lead to abortions in the first place. Yet again, government is not the solution to the problem. Could it outlaw abortion once more? Yes. Would that solve all the problems surrounding abortion, such as the behaviors that lead to abortions? No. We can keep chopping at the plant or we can start looking at the roots of the problem. We need to figure out how to get more parents back into the house, and how to get them doing good parenting when many of them never had much of it themselves. Government agents busting down my bedroom door demanding a marriage license between me and the woman I'm with does nothing to accomplish that, and that's exactly, precisely, and exclusively what this law does. Maybe if/when we stop fooling around with ridiculous laws like this, we can get on to solving the real problems that are crushing our society.

[NJ_gent]

"It's honestly my feeling that a healthy society needs to swing gently between "a little too much police power" and "a little too much individual freedom" to stay on course. I think we're nearing the part of the swing that produces "a little too much individual freedom" and are close to taking a gentle swing back."

I agree completely, and would point to the 1960s and 1970s to show just that. The cycle completed with the 1974 Privacy Act, which struck back at the many abuses of police power in the years prior. Following the passing of that law, other laws opened some doors once more when police began to complain that they were unable to go after real criminals because their hands were tied too tightly. Like you, I worry when things swing too far in any one direction. There's always the chance that the swing into 'more police power' can be the last movement as predicted in Orwell's 1984. I'm very conscious of literary works like that whenever I hear about someone in government trying to increase government or police powers. While I rarely meet a cop I don't like, I do have an inherent distrust of my government. I, for one, think that's very healthy. :-)

"Even libertarians concede that people must restrict their liberty so that it does not infringe on the basic rights of others, thus sacrificing liberty for security."

The real out-there wacko absolutists would probably disagree. Personally, my view with the 'no liberty for security sacrifice' thing is that we should never eliminate or suspend our core values simply to gain a bit more security. For instance, suspension of any part of the Bill of Rights, while it may be more convenient during the WoT, would most certainly push too far for my tastes. That said, during time of actual invasion, on fields of actual and tangible combat, I do absolutely agree that Martial Law is necessary. I say that because it is under those circumstances that the Constitution has no enforcable authority, and thus must be replaced by one which is enforceable. Ex Parte Milligan dealt with this nicely.

[CDB]

Using false charges to cover up for the failure to make real ones stick is precisely the sort of BS done in China, ...

Since when did China ever worry about "the rule of law?"