Virginia Sex Law Struck Down
State’s high court refers to Lawrence decision in
lawsuit over herpes infection
Gay
City News, January 20, 2005
By Arthur S. Leonard
While the Virginia Legislature continues to haggle about
whether to repeal the state’s sodomy law or reform it to reflect
constitutional limitations on the state’s ability to penalize private
consensual sex, the state’s Supreme Court acted on January 14 to strike down
a criminal statute against “fornication” between unmarried adults, relying
on the Supreme Court’s 2003 sodomy ruling in Lawrence
v. Texas.
The case came to Virginia’s high court as a side-issue
in a lawsuit filed by a woman against her former boyfriend, who she claims
infected her with herpes. Muguet Martin and Kris Ziherl lived together in what
the court calls “a sexually active relationship” from October 2001 until
early November 2003. Martin experienced symptoms that led her to seek medical
care in June 2003, and was diagnosed with herpes. This led to a break up with
Ziherl, and ultimately she sued him, claiming he knew he was infected and
contagious when he had sex with her.
Ziherl’s attorney came up with an interesting defense
tactic. Relying on a 1990 Virginia Supreme Court decision that bans plaintiffs
from recovering damages for personal injury sustained while engaging in an
illegal activity, the attorney argued that Martin could not sue because her
sexual activity was illegal under Virginia law. The fornication statute said
that only people who are married to each other can engage in sexual
intercourse, an ironic twist on the state’s popular tourism slogan,
“Virginia is for Lovers.”
Surprisingly, the trial judge, Theodore J. Markow of
Richmond City Circuit Court, agreed with Ziherl’s argument and dismissed the
case. Markow refused to apply Lawrence v. Texas to this situation, reasoning
that the state could have valid reasons for prohibiting heterosexual sex
outside of marriage, such as protecting public health and encouraging marriage
for the procreation of children.
Martin appealed, and the Virginia Supreme Court
unanimously reversed the dismissal, in an opinion by Justice Elizabeth Lacy.
“We find no relevant distinction between the
circumstances in Lawrence and the circumstances in the present case,” wrote
Lacy, noting that the Supreme Court had ruled 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.”
Lacy found that the court’s 1990 precedent barring a
person from seeking a recovery for injuries sustained during illegal activity
could not apply to this case.
“The sexual activity between Martin and Ziherl was not
illegal and ‘the fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice,’” wrote Lacy, quoting
from Lawrence v. Texas.
The case was sent back to the Richmond County Circuit
Court to give Martin a chance to prove that she had been negligently or
intentionally infected by Ziherl.
The court’s ruling should dispel any remaining doubt
whether the Virginia sodomy law is unconstitutional in light of Lawrence v.
Texas. However, this would not be directly relevant in on ongoing dispute
between local law enforcement officials involved in rest stop raids and gay
men who claim they are victimized because of their sexual orientation, since
the Virginia court did emphasize, as had the U.S. Supreme Court in Lawrence,
that the case did not involve “public activity.”
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