ACLU Defends Privacy for Love
The
Washington Times, October 17, 2002
Cox News Service
ATLANTA—For 169 years, it’s
been a crime in Georgia for anyone to have sexual relations out of wedlock.
But an American Civil Liberties Union lawyer on Tuesday
asked the Georgia Supreme Court to toss the government “out of the
bedroom” by throwing out the state’s fornication law.
“Hundreds of thousands of Georgians, even those in
long-term relationships, are criminals, criminals under this law, even if they
engage in these private acts in their own house,” ACLU lawyer Gerry Weber
said in arguments before the court.
A violation of the fornication statute, enacted in 1833,
is a misdemeanor and carries a sentence of up to a year in prison and a $1,000
fine. Only 13 states still have similar laws on the books. The statute is
rarely used.
The challenge is being brought by a teenager described in
court papers as J.M. A year ago, he was prosecuted as a 16-year-old after he
was found having sexual relations with his girlfriend in her Fayette County
home. Although the girl, identified by court records as J.D., placed a stool
against her bedroom door, her mother caught them in the act at about 3 a.m.
J.M., now 17, was ordered to pay a fine and write an
essay on why he shouldn’t have engaged in sex. He politely wrote that it
wasn’t any of the court’s business, said another one of his attorneys,
Catherine Sanderson.
Mr. Weber, who heads the Atlanta office of the ACLU,
urged the court to follow a precedent set in 1998 when the court overturned
the state sodomy law on privacy grounds.
The sex by both J.D. and J.M., who had been dating for
six months, was consensual, Mr. Weber added. “This was a bedroom in a house,
the most private of all places.”
A number of the court’s justices, however, wondered
whether privacy rights carry over to people who are visitors. “Why does J.M.
have a right to assert a right to privacy in someone else’s bedroom?”
Chief Justice Norman Fletcher asked.
Mr. Weber answered that the U.S. Supreme Court has ruled
privacy rights extend to houseguests. He also said that J.M. had been invited
by his girlfriend and had previously been allowed by her parents to visit.
But Jamie Inagawa, an assistant district attorney from
the Griffin Judicial Circuit, said that J.M. knew he didn’t belong in the
house at that time and was therefore not entitled to a right of privacy.
Justice Harris Hines wanted to know if J.D. had
permission to invite her boyfriend into the house.
Mr. Inagawa said that the boy had been allowed to come
over to his girlfriend’s house in the past. On this occasion, the prosecutor
said, “Yes, she did invite him — unbeknownst to the owner of the house.”
Mr. Inagawa also told the justices they should take into
account the fact the teenagers were minors at the time of the offense.
Justice Leah Ward Sears then asked, “But if they were
17, they’d still be guilty. If they were 18, they’d still be guilty.
Isn’t that right?”
Mr. Weber, noting that 16-year-olds are allowed to marry
and buy contraceptives in Georgia, said the law applies to anyone, even if
they were 55 or 75 years of age. If these people have sex out of wedlock, he
said, “they are made a criminal under this 1833 law.”
According to the U.S. census, there are 145,000 unmarried
couples in Georgia. The state Supreme Court does not have to issue its ruling
until early next year.
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