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."
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.
"I can't say we're pleased we made Virginia safe for fornication," said Neil Kuchinsky, Martin's attorney. "Though some will thank me, I'm sure. What we're saying is, there's a new sexual rule of procedure in Virginia. That is, 'If you're not asked, do tell.' "
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 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."
Yesterday's ruling relied heavily on the U.S. Supreme Court's opinion in Lawrence v. Texas, which involved a man who had been convicted of sodomy. In that case, the justices ruled in favor of the right for personal relationships to be free of governmental interference.
"The State cannot demean their existence or control their destiny by making their private sexual conduct a crime," the opinion said.
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."