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Of Lust and the Law

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia's criminal code, doesn't approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is "a perfect example of how the Supreme Court is inserting its own views into Virginia law." Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because "adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted." While many would agree adultery is wrong, there are plenty of things that are "wrong" but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery.

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The real reason these laws go unchallenged appears to be self-serving politics. Joseph F. Murphy Jr., chief judge of the Maryland Court of Special Appeals and chairman of a committee to overhaul the Maryland code, put it bluntly. "You can imagine what would happen if you tried to take adultery off the books at this point. You would have a large group of people who would complain bitterly about it as another example of that state losing its moral compass."

It takes courage to take such an action -- something apparently in short supply in Virginia, Maryland and some other states.

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete -- it is statistically certain -- with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted -- making such prosecutions as random as a societal drive-by shooting.

Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a "whore's chair" for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let's put an end to them -- and leave morality prosecutions as a matter of historical interest for 13th-century scholars.

Author's e-mail: jturley@law.gwu.edu

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.


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