- The Washington Times - Friday, January 14, 2005

RICHMOND — The Virginia Supreme Court yesterday struck down an old and rarely enforced state law prohibiting sexual relations between unmarried people.

The unanimous ruling strongly suggests that a separate anti-sodomy law also is unconstitutional, although that statute is not directly affected. The justices based their ruling on a U.S. Supreme Court decision voiding an anti-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 (ACLU) in Virginia.

“It’s a strong message to legislators that they must repeal Virginia’s sodomy law,” he said. “Now both the U.S. Supreme Court and the Virginia Supreme Court have spoken on essentially the same issue.”

Virginia’s anti-sodomy law prohibits oral and anal sex, even for married couples, but homosexual-rights advocates say the statute is used only to target homosexuals. 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.

“We find no relevant distinction between the circumstances in Lawrence and the circumstances in the present case,” the Virginia justices said.

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 said the man did not tell 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 Supreme Court reinstated the lawsuit.

“The ruling recognizes that a sin greater than fornication is not telling someone you have a sexually transmitted disease and then not practicing safe sex,” said the woman’s attorney, Neil Kuchinsky. “The rule now should be: If not asked, do tell.”

The law against fornication had been on the books since the early 1800s but was last enforced against consenting adults in 1847, said Paul McCourt Curley, attorney for the defendant.

Mr. 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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