Virginia Court Strikes Down Unmarried Sex Law
The
Advocate, January 15, 2005
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
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 a 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 of Virginia.
Virginia’s sodomy law prohibits oral and anal sex even
for married couples, but gay rights advocates say the statute is used only to
target gays. Legislators for years have rejected efforts to repeal the law.
They left it on the books again last year even after the Lawrence v. 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 state
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.”
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