Virginia Ban on Sex Between the Unmarried Is Struck Down

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 antisodomy 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 an antisodomy 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 in Virginia.

Virginia’s antisodomy law prohibits oral and anal sex even for married couples, but gay rights advocates say the statute is only used 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 decision in the Texas case held that such laws were 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 says 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 Supreme Court reinstated the suit.

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, lawyer for the defendant in the lawsuit.

Curley said he saw nothing wrong with having laws on the books, even if they were unenforced, that said, “These are the ideals and morals of the state of Virginia.” He said the ruling sent a message that anything goes.

However, the justices noted that their ruling did not “affect the commonwealth’s police powers regarding regulation of public fornication, prostitution, or other such crimes.”