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Outlook: Of Lust and Law

Jonathan Turley
Professor of Law, George Washington University
Tuesday, September 7, 2004; 11:00 AM

You would think this country was a long way from the bawdy courts of 13th-century England, which the Anglican Church used to enforce public morality and punish unfaithful husbands and wives. In that era, adulterers could even be executed. The Puritans brought this tradition with them to the New World. Though they didn't have church courts, they made adultery -- and sodomy -- a crime as they developed their laws. A few of those found guilty were executed; others were whipped or publicly humiliated. Today, 23 states, including Virginia and Maryland, have laws making adultery a crime. Such cases are prosecuted only rarely, but they are prosecuted, as a Virginia lawyer who had an affair discovered recently. The Supreme Court struck down anti-sodomy laws, as Jonathan Turley points out in his Sunday Outlook article, Of Lust and the Law. Now, he says, it's time to get rid of all these laws that attempt to regulate private matters between consenting adults.

Turley, the Shapiro Professor of Public Interest Law at George Washington University, will be online Tuesday, Sept. 7, at 11 a.m. ET to discuss his article.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.


Herndon, Va.: Professor Turley: In states which still have this ridiculous statute -- could a defense lawyer use a defense of "selective prosecution" -- that the prosecutor is obviously prosecuting only one of many who are "candidates" for prosecution?

Jonathan Turley: Selective prosecution defenses are rarely successful. Many courts will not even allow the arguments to be made to a jury. They tend to view the rate of prosecution as immaterial in most cases and focus on the evidence of the alleged criminal act. I personally believe selective prosecution defenses should be given more attention.

There are two related constitutional defenses for vague or ambiguous statutes, but these provisions generally are sufficiently clear and unambiguous. Having said this, you are correct to be concerned about selective prosecution. After all, the newspapers are filled with adultery tales of leading politicians and personalities. Likewise, the local divorce courts are filled with such allegations. Yet, these prosecutors pick and choose who will be hoisted as the symbolic adulterer. In Virginia alone, literally hundreds of thousands of such individuals could be prosecuted. It will be interesting to see if these local prosecutors will now adopt the same approach to other lovers who turn in adulterers.


Laurel, Md.: In the Marv Albert trial a decade ago, the Virginia prosecutor's strategy was to introduce evidence so humiliating that Albert was better off just pleading guilty than letting the evidence of his sexual proclivities come out in court.

Isn't the point of many of the prosecutions to give the press a reason to publish accounts of the accused's sex life as a kind of public embarrassment?

Jonathan Turley: There is no question that prosecutors often use the media as a way to forcing defendants to plead guilty or to simply extact some retribution justice. However, this is considered grossly unethical. Indeed, prosecutors are required to minimize the release of such information or not supposed to use court documents for such extrajudicial purposes. Given teh misdemeanor penalties, these crimes do remain primarily a shaming punishment. However, they can have real consequences for many litigants. This includes for people like Bushey a potential threat to his license to practice and certainly complications in filing our employment applications.


Harrisburg, Va.: This is SO outrageous! If Luray is like any other jurisdiction in the U.S., a high percentage of babies are born to unwed parents. Each such child was conceived during an act of fornication or adultery. Does Mr. Williamson investigate each such birth and then bring the appropriate charges?

Private consensual conduct between adults should be covered by privacy laws. If and only if it is not consensual, or involves a minor, should the law get involved.

I urge all Virginians to elect responsible legislators and local officials who will put an end to this ridiculous use of tax dollars.

Jonathan Turley: Indeed, I expect that if a small percentage of politicians accused of adultery were prosecuted, this law would be history. Virginia is ironically the cradle of our constitutional system, including our strong traditions of privacy and small government. Virginia citizens should fight not for adulterers but for privacy in repealing this law.


Monterey, Calif.: Would you please describe what you see as the fundamental principle(s) -- both from a legal and a human perspective -- which supports getting laws like this off the book?

Jonathan Turley: There are a number of principles that militate strongly in favor of repealing these laws.

First, there is privacy. The United States has always had a strong privacy tradition, protected by the Constitution. Moral choices remains matters for each individual citizen to contemplate and resolve. For some, marriages are not morally exclusive but "open." While I personally do not understand this approach (and certainly my wife would not), as many as 15 percent of marriages are "open." Thsi is an area where an individual's religious and social context is critical. It is no place for government.

Second, there is equal protection. In most states, fornication is now legal between unmarried persons. The Supreme Court has found that citizens have privacy and equal protection guarantees against anti-sodomy statutes. Yet, married persons are still subject to government intervention and prosecution.

Third, there is the question of religion in society. As we have seen from fundamentalist Islamic regimes, it is dangerous for government to enforce morality codes. We do not need government to protect our morals. Each of us must find our own moral foundation by choice not by coercion.

Fourth, there is small government. I tend to prefer small government. I believe that our politicians make for lousy morality ministers. I prefer to keep government focused on real crimes and safety, not policing the moral choices of citizens.

Finally, there is public policy. Given the fact that up to 50 percent of married individuals have engaged in this crime, millions of individuals in Virginia would be prosecuted if this law was fully enforced. It is an outrage to just pull out a sampling of adulterers to be periodically prosecuted.


Alexandria, Va.: When Ms. Hensley made the complaint against Mr. Bushey, why didn't they charge her under the fornication statute?

Jonathan Turley: Good question. The fornication statute is supposedly on the way to a repeal in Virginia as well as other states. There is no question that fornication statutes are unconstitutional under the Lawrence decision. However, the real reason is probably prosecutorial discretion. As the complaining witness, Hensley was unlikely to prosecuted for coming forward as a matter of public policy.


Washington, D.C.: How did you find out about this case?

Jonathan Turley: I think I first saw this case mentioned in the Washington Post, but I cannot remember exactly (I have lost more and more short term memory with each of my children. I stopped at three so that I could at least remember my address and name).


Silver Spring, Md.: Did Bushey ever explain why he decided not to fight this case and instead opted to do community service?

Jonathan Turley: I tried to interview Mr. Bushey but he declined (as he has other interviews). I expect that he was eager to end the publicity and to protect his law license. Under the deal, his record will be expunged.

Frankly, I do not understand his decision. He accepted the right of the state to punish him for a moral failing. As a matter of principle, I would have expected a lawyer to fight such a law. Moreover, he would have won. While no one is likely to approve of his personal choices, he could have at least won an important victory on principle. Instead, he is now a convicted adulterer who took a deal as an easier way out. This may seem harsh, but I believe the decision to cut a deal showed a certain unfaithfulness to principle to match an unfaithfulness to marriage. I can almost understand the choice on a personal level, but I am more critical of a lawyer for not opposing such a law.


Tenleytown: Ironically, the adultery law in Virginia is used mostly as a shield in divorce cases. Adultery is a big factor in dividing marital property and awarding spousal support in Virginia. Yet, if you depose the paramour, they inevitably take the Fifth Amendment because of this law.

Jonathan Turley: Indeed, I have heard of the use of these laws as a way for people to claim the Fifth Amendment to avoid discussing the details of an affair. There is also no question that the criminal provisions are primarily used as leverage in divorce cases. I oppose either uses. Frankly, adultery should be a relevant subject in a divorce proceeding and should not be shielded because of a little enforced misdemeanor provision. If the legislator wants to create a divorce privilege for divorce cases, it should hold hearings and a public debate. Instead, this is a windfall for gumshoe private detectives who are hired to find adultery to secure an advantage in divorce court.


Herndon, Va.: Prof. Turley, thank you for your excellent article! Concerns about what certain interest groups will say regarding the Virginia legislature's moral compass are insufficient justification for the invasion of my right to choose the kind of relationship I want.

I am a polyamorist. I am female partnered to a male, am cohabitating (which is also against the law in Virginia, by the way), committed but not legally married by choice, and we have an open relationship. We and those like us commonly have loving relationships with others who are married and whose spouses know all about it, even encourage it, and certainly accept it. But one of our biggest legal challenges is child custody issues that arise, when a marriage comes to an end, and all of a sudden one spouse denounces the former agreed-upon arrangement in order to get the upper hand in the child custody fight. Though children are not harmed in such families when the parents behave ethically and keep private that which is not age-appropriate for their children, the courts side with the "reformed" parent every time.

I see great potential for similar problems in states that criminalize adultery, and also worry that conservative forces will decide to take us to task on principle. Any comment?

Anita Wagner
The Institute for 21st Century Relationships

Jonathan Turley: Very interesting perspective. It is one that you might want to share for publication in the letters section. I believe that people often ignore that marriage remains a relationship -- albeit officially sanctioned. Relationship differ with the moral and social views of the participants. Part of being human in a free society is to search for our own idea of salvation or happiness. It is the most important journey of any human being. Criminalizing consensual affairs will do little to shape such views. It will only impose on insular moral minorities the views of majority.

In my research, I was intrigued by the fact that in the 1600s and 1700s it was common to have a menages a trois because men outnumbered women by four-to-one in the southern colonies and three-to-one in the New England colonies. It was particularly common in the Chesapeake area. Indeed, with the fact of arranged marriages to older men, it was common for elderly men to look the other way in such relationships. One such case is recorded in Essex County in Massachusetts where an eighty-year old Alexander Gilligan allowed his wife, Elizabeth, to have a lover, John Honiwell.

The point is only that, regardless of the legal sanctions, adults tend to define marriage in their own way and accordingly to their own moral perspective.


Washington, D.C.: Mr. Turley-
Thank you so much for a wonderful article. I was curious if you see a move away from the legalization of morality affecting other issues that relate to privacy and law.

Jonathan Turley: It is hard to say. My e-mails at work have largely been opposed to any decriminalization of adultery. However, there has been a steady social trend toward such decriminalization and increased privacy with regard to intimate relationships and lifestyle. Even the Supreme Court recognized this social shift, it is own legal doctrinal change in the Lawrence decision. We have the right to raise our children in our own faith and moral structure. Their morality reflects on our own efforts and care. I personally would like government out of the business of morality enforcement. I think more and more people agree with this view, particularly after watching the excesses of religion-based governments. For that reason, President Bush's radical shift toward incorporating religious organizations into government is a bit disconcerting as a matter of public policy. I expect that most politicians would repeal these laws but they lack the courage. As Moran noted, these laws are infrequently prosecuted and yet he still wanted to keep them on the books. He is not likely to find courage or principle without a strong showing from his voters.


Anonymous: Isn't it a problem that voters are energized by self-proclaimed moral leaders who made it political suicide for politicians who attempt to change these laws? Maybe it would help if we explain to these voters what we can do with these laws. Maybe they will agree that it isn't that the laws are bad, but that they aren't vigorously enforced. Maybe we should allow the government full access to our bedrooms at all time and fully monitor that no violations occur. Police should be allowed to videotape at will, and anything found wrong should be displayed publicly. Maybe then voters can decide whether these laws are appropriate.

Jonathan Turley: An interesting thought. There is no question that politicians like Del. David Albo and Del. Brian Moran are afraid of the personal backlash if they even suggested the decriminalization of a morality crime. As Moran stated, "adultery is wrong" and he does not want to be seen as pro-adulterer. Just as such politicians make for lousy moral ministers, they make for lousy statespersons. It was once said that a politician looks to the next election while a statesperson looks to the next generation. These are politicians.

Finally, in case John Ashcroft is reading, the suggestion of the bedroom surveillance was merely a rhetorical not a legal suggestions.


Charlotte, N.C.: What has been Mrs. Bushey's comment on all this?

Jonathan Turley: Unfortunately, Mr. Bushey is not giving interviews. However, in cutting this deal, he accepted punishment under this law. While I can understand the personal desire to move beyond this matter, it was in my view a terrible decision for any attorney as a matter of principle.


Vienna, Va.: It seems that some things are being overlooked here. While at first glance this is a private matter, other people and the general public are inevitably involved to our cost. Adultery and fornication result in the following:

1. The spread of social diseases, such as AIDS, syphillis, gonerhea, etc. Who pays? We all do with our taxes.

2. Disruption of homes and society. Divorce and unplanned pregnancies have considerable effect on the spouses, children and extended families, as well on the people involved.

3. Domestic violence and murder. Jealousy is a powerful emotion. How many people are injured or killed because of illicit sex? Who bears the burden? We do, because it is society, through the courts, social services, etc., who has to pick up the pieces when these private matters become known, as they inevitably do.

These laws should remain on the books, but more importantly, people should know that there are very practical reasons why they are there.

Jonathan Turley: None of us who favor repealing these laws would disagree that adultery has such societal effects. However, these laws have not prevented as much as 50 percent of married persons from engaging in this proscribed conduct. If you believe in these laws, then they should be enforced generally and not selectively. That would make literraly millions of prosecutions. For my part, I believe that these cases remains issues for individuals and not the government.


Arlington, Va.: I wonder how people that object to these laws feel about DOMA-type laws (anti-gay-marriage). It seems to me that if marriage is so gosh darn important that only certain people (e.g., straights) are allowed to get married and get all of those protections, then government DOES have an interest in prosecuting persons that interfere in marriage. Or, if we are going to say that we are talking about private consensual acts, then why should government be able to say who can and who can't get married? It annoys me that Virginia would be backing off on fornication and adultery laws and moving ahead with Defense of Marriage, it's hypocrisy.

Jonathan Turley: I certainly understand your point, but there is a distinction that could be drawn. States can argue that it is a matter of state law as to how to define a legal relationship that comes with various legal benefits and obligations. This is different from the right of the state to police our intimate or private relationships whether through anti-sodomy or anti-adultery prosecutions. For example, the state can define what constitutes the breaking of a commerical contract, but every violation is not a crime but a civil matter. In the same way, the state can define what constitutes a breach of a marriage, but that does not make every breach a crime.

Putting this distinction aside, there is obviously relevance to same-sex marriage debate which is often based on the majority's view of the moral basis for a marriage.


Elkridge, Md.: I suspect that when the "lust laws" were enacted, Society wanted to reduce the number of unwanted/neglected babies, so the morals and the laws reflecting them probably acted as a form of "societial and legal birth control" in a time before reliable physical birth control was available. Ditto for child support since positive identification of the father has only recently become available. (One of the newer crimes has been that of the father killing his unborn baby and its mother to avoid paying child support.)

Jonathan Turley: I certainly agree that these were rationales later but in their origin, the bauwdy courts were primarily defending the faith and its moral scriptures.


New York, N.Y.: This is off topic, but there are few alternatives to seek to discuss this. The New York press described how, during the Republican convention, large numbers of people had nets thrown over them and all were detained without charge until the convention was over. Some of the people interviewed, assuming they were telling the truth, claimed they were not demonstrators but leaving work and how everyone on the block was netted and driven away. There was a story of a mother who didn't know where her daughter was for several days.

This story seems to have not gathered much attention beyond the New York newspapers. My question, in relating this to your topic: are we losing our civil liberties in this country?

Jonathan Turley: I am a bit biased. I represent protesters who were arrested in the IMF protests in Washington. They were arrested under a trap and arrest practice in which hundreds of people were trapped and arrested in masse to suppress the protests. Many were journalists or bystanders. The city has admitted that these were unconstitutional arrests.

We have learned from painful history that our most serious injuries have tended to be self-inflicted during periods of war or unrest.


Arlington, Va.: I have a problem with your basic premise, which seems to be that government should not interfere with essentially private sexual relationships. Isn't it true that marriage is an essentially public relationship, sanctioned and protected by the state? Isn't that what the whole fight over gay marriage is about? If the state sanctions marriage relationships and favors them, then why shouldn't it criminally discourage interference with it?

Jonathan Turley: There are plenty of matters that are creations of state law such as commercial contracts. Absent a criminal intent to defraud, we do not criminally prosecute everyone who fails to comply with a contract. They are enforced through the civil system like divorce cases. The state sanction is important as the basis for such civil lawsuit to collect damages for the injury caused by adulterers. I tend to favor a Jeffersonian view of small government. We do not need a Virginia counterpart to the Islamic Sharia, or religious laws. We can rely on our families and our churches to teach our children morality.


Washington, D.C.: Doesn't Virginia still outlaw interracial relationships/marriages? Aren't the laws you described in your article entirely consistent with Virginia's 1800s view of the world?

Jonathan Turley: Virginia's prohibition on interracial marriages was struck down in 1967 in Loving v. Virginia. However, there is no question that these laws are the product of an earlier age. I would put 1800s as a bit too recent. They reflect a puritan view that originates in the 13th Century and became especially active in the 1600s.


Washington, D.C.: I think the government prosecuting people for adultery smacks of the same kind of religious nonsense practiced by the Taliban, radical Islam and any other theocracy. Ridiculous.

However, it's interesting that this is coming up in the middle of a debate about "defending marriage" -- ironically defending it against people who want to get married. Nevertheless, if a Constitutional amendment passes banning two people of the same gender marrying each other, then I think these adultery laws should be prosecuted to the fullest extent of these outmoded laws.

They want to protect marriage? Then they better follow though.

Jonathan Turley: It is certainly interesting that people rarely recognize the theoretical link between these morality laws and Sharia laws or religious laws of fundamentalist nations. When the morality prosecutions reflect your own view, they somehow seem less radical or tyrannical. The point is that we must make a choice as a society between compelling matters of morality and protecting the right to make choices of morality. If freedom means anything, it is the freedom to search for your own sense of worth and morality. It is generally a lifetime pursuit.

As for same-sex marraige, see my earlier answer. There is a distinction to be made but I agree that arguments often converge on a matter of official morality.


Jonathan Turley: Thank you all for some great questions and exchanges.

Jonathan Turley


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