Virginia Adultery Case Goes from Notable to Nonevent
Washington
Post, August 25, 2004
By Michelle Boorstein, Washington Post Staff Writer
For a while, it looked as if John R. Bushey Jr. might go
down in history as the man who challenged Virginia’s anti-adultery law,
which cost him his 32-year career as an attorney for the Shenandoah Valley
town of Luray.
After pleading guilty last October to having sex with
someone besides his wife of 18 years—who happens to be Luray’s town
clerk—Bushey, 66, changed his mind and appealed, positioning himself to
become a crusader in the movement to decriminalize consensual sex. That
movement, led by the American Civil Liberties Union, got a major boost last
year when the U.S. Supreme Court struck down the anti-sodomy law in Texas.
Then Bushey changed his mind again.
Last week, a Page County Circuit Court judge approved a
deal that closed the book on the case without a trial. Bushey did 20 hours of
community service, and in exchange prosecutors agreed not to pursue the case
against him, wiping the misdemeanor from his record. He could have been fined
as much as $250 if the conviction had stood.
So the case fizzled as a rallying cry and served only to
underscore an old—if much-ignored—point: Adultery is illegal in Virginia.
It is also illegal in Maryland, as it was in the District until the law there
was repealed last spring.
Although prosecutors wouldn’t talk initially about
their reasons for invoking the seldom-used law against Bushey, Assistant
Commonwealth’s Attorney Glenn Williamson said yesterday that the state has
an interest in punishing adultery. “We’re not out beating bushes and
certainly we’re not peeking in windows,” she said. “However, in this
case, it was thrown in our face.”
Bushey did not return phone calls, and neither his
lawyer, ACLU attorney Rebecca Glenberg, nor Williamson would say much about
the evidence. The other woman, Nellie Mae Hensley, 53, triggered the case by
complaining to police about Bushey.
“I don’t think it was right that it was dismissed on
him,” said Hensley of the case, which she said caused her so much stress
that she sought therapy and medication.
Williamson said that once the ACLU became involved, he
decided Bushey had been punished enough: He had admitted guilt, been asked to
resign and done community service.
Like Prince William Circuit Court Judge Herman Whisenant
Jr., Williamson, who usually works in Frederick County, was brought in from
outside because everyone in Luray knew Bushey.
“I preferred the case be resolved rather than tried,”
said Williamson, who said he has prosecuted adultery cases, though he
couldn’t recall when. “If [Bushey] hasn’t learned that he shouldn’t be
doing these things, an additional $250 fine wouldn’t make any difference.
And as far as general deterrence, it should now be widely known that adultery
is a crime in Virginia.”
Glenberg, of the ACLU’s Richmond office, said that as
Bushey’s attorney, she wanted him to get the best possible deal. She said
she is confident that civil liberties groups will continue to press for sexual
privacy after the Supreme Court ruling.
In Luray, the case represents something less grand than
the chance to help shape national privacy law.
“I grew up here, and I learned a long time ago not to
pay attention because it’s typical small-town U.S.A.,” said Sam Price, a
lawyer in Luray, population about 4,500. “Everybody’s a rumormonger, and
you don’t know what to believe.”
Another woman, a financial adviser who spoke on condition
that her name not be used, said she thinks local residents are too busy with
the “petty and shameful stuff of small towns because they don’t have
enough to keep themselves busy. . . . I think the law in this community is
used as a weapon.”
Mayor Ralph Dean praised the work of Bushey, who now
works in private practice in town. He also said he was glad a deal was reached
in the case. “Then it’ll die,” he said, “and we won’t have to hear
much about it.”
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