posted
The case didn't involve someone being prosecuted for it, but rather a lawsuit alleging that a a man had unprotected sex with a woman while he knew he had herpes. From the Post:
quote: The state Supreme Court yesterday struck down as unconstitutional a 19th-century Virginia law making it a crime for unmarried couples to have sex.
"We find no principled way to conclude . . . that the Virginia statute criminalizing intercourse between unmarried persons does not improperly abridge a personal relationship that is within the liberty interest of persons to choose," said the decision, written by Justice Elizabeth B. Lacy. The ruling strikes down a law criminalizing fornication as a Class 4 misdemeanor punishable by a fine of up to $250. The law had been on the books since the early 1800s but has not been enforced against consenting adults since 1847, lawyers said. The court based yesterday's ruling on a 2003 U.S. Supreme Court decision overturning an anti-sodomy law in Texas.
The opinion did not deal with a separate Virginia law prohibiting sodomy. But attorneys for both parties in the case said it suggested that the court considers most laws regulating sex between consenting adults to be unconstitutional violations of the 14th Amendment's right to due process.
"It has far-reaching ramifications," said Paul Curley, an attorney for Kristopher J. Ziherl, the defendant in the case. "When you deal in any way with consensual acts -- sodomy, bigamy, adultery -- I'm not sure how any of them stand at this point."
Consensual adultery and bigamy? Like if the wife says it's okay for the man to go elsewhere? That seems so wrong to me. I think a woman refusing relations should dissolve the marriage. Sure a woman should have to have sex with anyone she doesn't want to, but a man has no obligation to her if she decides that is a permanent condition.
P.S. There is a big difference between don't want to and don't feel like.
[ January 15, 2005, 01:21 PM: Message edited by: Trisha the Severe Hottie ]
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posted
Trisha...I'm not sure how that relates to the story or the law posted.
Interesting, though. Bigamy is a crime everywhere in the US.
Adultery is a legitimate reason for divorce in states that require one, as well as for most Christian churches (I'm not sure about other faiths).
This case was about a law that barred consenting adults from having sex if they aren't married to each other. Single people (not engaging in marital infidelity) could be charged under the law.
quote: The case involved a woman who sued her former boyfriend. Muguet S. Martin of Dinwiddie asked for $5 million in damages from Ziherl when she learned she had contracted herpes after they had had unprotected sex. She alleged that Ziherl knew about his condition but failed to inform Martin.
Circuit Court Judge Theodore J. Markow in Richmond dismissed the lawsuit, concluding that Martin was not entitled to sue for damages that occurred during an illegal act. The state Supreme Court ruling reinstates the lawsuit, which will proceed in Circuit Court.
. . .
Martin, 30, said she had no idea she was committing a misdemeanor during her two-year relationship with Ziherl. Comparing the ruling to laws regulating drinking and driving, she said yesterday's ruling means Virginians should act responsibly.
"Ultimately, the message is, we are adults and we do engage in activities that are not always current with the law books," she said. "If you're going to do something, be responsible about it."
Curley <the defendant's attorney> agreed that it is wise and moral to inform sexual partners of any sexually transmitted diseases. But, he added, "To some degree, you assume the risk of contracting a disease if you have unprotected sex with someone."
. . .
Virginia's justices stressed that their ruling affects only private behavior between consenting adults.
"Our holding does not affect the Commonwealth's police power regarding regulation of public fornication, prostitution or other such crimes," the opinion said.
Curley said the opinion strips lawmakers of the authority to legislate most sexual acts.
"It's ironic in this case," he said. "Had the plaintiff complied with Virginia's fornication statute, she would not have gotten herpes."
So basically, the original ruling barred this woman from suing her former lover because he failed to inform her of his herpes-positive status. Now she can sue him for not informing her.
Seems like he should've been up front with her in the first place and deserves some sort of punishment.
Invoking some Colonial-era law that hasn't been enforced was not the epitome of wisdom or justice in the first instance, seems to me. So now the VA Supreme Court has cleared up a piece of defunct legislation.
Good for them.
The defendant's attorney has an interesting viewpoint -- that if the woman had obeyed the applicable VA laws, she wouldn't have contracted Herpes. Oh the irony. Of course, if his client (who was also single) had previously obeyed those same laws, then HE wouldn't have contracted herpes either. Of course, if he'd just behaved like a responsible adult, he would've informed his partner of his disease status and she would've had the information she needed to make her own responsible choice.
Dag -- is it okay if I hate THIS lawyer?
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posted
Sure, but legally, he may be right. Had the law not been struck down, it may have barred recovery. That's not automatic, though.
It's worth noting that the Virginia Supreme Court could have decided in the plaintiff's favor without actually striking down the law.
When all this plays out, I'm betting that eventually courts will still be allowed to penalize adultery, although not necessarily in a criminal fashion. They might, though. There's different state interests at stake there. And anti-bigamy laws won't be made unconstitutional any time soon.
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But will they have to change the name of the state now? I favor "Virgin? Ha!"
The bigamy question was raised in the first post:
quote: "It has far-reaching ramifications," said Paul Curley, an attorney for Kristopher J. Ziherl, the defendant in the case. "When you deal in any way with consensual acts -- sodomy, bigamy, adultery -- I'm not sure how any of them stand at this point."
[ January 15, 2005, 02:13 PM: Message edited by: Trisha the Severe Hottie ]
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posted
Yeah, but that attorney is drawing unfounded conclusions.
The plurality principle of Lawrence (it didn't get a majority) is that the private consensual sexual acts of adults is not a proper subject for criminalization. Bigamy draws in way more than merely private consensual sexual acts. Lawrence could be the first step toward a constitutional prohibition against anti-bigamy laws, but there's a lot of doctrinal gaps to fill first.
Whereas, a direct reading of the Lawrence plurality opinion leads to this decision almost inescapably.
posted
Bigamy is having more than one spouse, and the law is very clear on how many spouses one is allowed to have.
You can have sex with as many people you want because there is no contractual obligation to each ohter, legaly....but marriage is different, and the states will probably be allowed to continue legistlating their own rules as to what constitutes a legal marriage.
I don't think consensual adultery makes sense, unless they mean that the spouse and the adulterer and the adulteree all consented.
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It might mean consensual sex between two people not married to each other, of whom at least one is married.
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I always thought that was a stupid thing to list on those "Are you a victim of abuse" lists. It smells like they are trying to talk everyone into deciding they are abused.
Dagonee- of course that is one interpretation, but I think it should constitute fraud on the part of the married person unless they have a written contract permitting them to indulge in indiscretion.
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I just meant the words "consensual adultery" might mean what I said, not that I think the state will lose the power to regulate it. As you said, the marriage makes the situation different from mere fornication.
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It seems like around 1985 there was a new slogan "we have it made in virginia".
Looks like "Meet Virginia, she's a friend for all seasons" is the Virginia Tourism Slogan but they do have the "Virginia is for lovers" up there in the corner.
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