Virginia Supreme Court Strikes Down Fornication Law

Affiliate: ACLU of Virginia
January 14, 2005 12:00 am

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RICHMOND, VA — The American Civil Liberties Union of Virginia applauded a state Supreme Court ruling today that strikes down a law banning sexual relations between unmarried persons.

“Common sense and the Constitution joined forces to give us this very right decision,” said Kent Willis, Executive Director of the ACLU of Virginia, which filed a friend-of-the-court brief in the case, arguing that the law is an unconstitutional government intrusion into people’s private lives. “The Virginia Supreme Court has now stated emphatically that the government has no business regulating intimate relations between consenting adults in the privacy of their own bedrooms.”

“Given the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas in which it struck down state anti-sodomy laws, the outcome of this case was predetermined,” added Willis. “If banning sodomy violates the right of privacy, then banning fornication does too.”

In the 2004 General Assembly, lawmakers agreed to repeal Virginia’s anti-sodomy law as it applied to private settings, but could not agree on the punishment for public sodomy. By the end of the session, the original sodomy law was still standing. In today’s ruling, the Virginia Supreme Court made it clear that its decision did not affect the state’s ability to pass laws governing sex in public.

Lawmakers still have time to introduce legislation repealing the fornication statute this year. The deadline for new bills is next Friday. “Today’s decision should send a clear message to Virginia’s legislators that they need to deal with the unfinished business of repealing Virginia’s sodomy law,” Willis said.

The case decided today began when Muguet Martin filed a lawsuit seeking damages from her boyfriend, Kristopher Ziherl, for transmitting herpes to her during the relationship. According to Martin, Ziherl knew he was infected with herpes, knew the virus was contagious, and failed to inform Martin of his condition.

Richmond Circuit Court Judge Theodore J. Markow dismissed the case, holding that Martin could not sue for damages that she incurred while engaging in the illegal act of fornication. Martin’s lawyer, Neil Kuchinsky, argued that the state could not make fornication illegal. The case will now go back to the Richmond Circuit Court.

A copy of the Virginia Supreme Court’s decision in Martin v. Ziherl is available online at:

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