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Virginia Sex Law Struck Down

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State’s high court refers to Lawrence decision in lawsuit over herpes infection

While the Virginia Legislature continues to haggle about whether to repeal the state’s sodomy law or reform it to reflect constitutional limitations on the state’s ability to penalize private consensual sex, the state’s Supreme Court acted on January 14 to strike down a criminal statute against “fornication” between unmarried adults, relying on the Supreme Court’s 2003 sodomy ruling in Lawrence v. Texas.

The case came to Virginia’s high court as a side-issue in a lawsuit filed by a woman against her former boyfriend, who she claims infected her with herpes. Muguet Martin and Kris Ziherl lived together in what the court calls “a sexually active relationship” from October 2001 until early November 2003. Martin experienced symptoms that led her to seek medical care in June 2003, and was diagnosed with herpes. This led to a break up with Ziherl, and ultimately she sued him, claiming he knew he was infected and contagious when he had sex with her.

Ziherl’s attorney came up with an interesting defense tactic. Relying on a 1990 Virginia Supreme Court decision that bans plaintiffs from recovering damages for personal injury sustained while engaging in an illegal activity, the attorney argued that Martin could not sue because her sexual activity was illegal under Virginia law. The fornication statute said that only people who are married to each other can engage in sexual intercourse, an ironic twist on the state’s popular tourism slogan, “Virginia is for Lovers.”

Surprisingly, the trial judge, Theodore J. Markow of Richmond City Circuit Court, agreed with Ziherl’s argument and dismissed the case. Markow refused to apply Lawrence v. Texas to this situation, reasoning that the state could have valid reasons for prohibiting heterosexual sex outside of marriage, such as protecting public health and encouraging marriage for the procreation of children.

Martin appealed, and the Virginia Supreme Court unanimously reversed the dismissal, in an opinion by Justice Elizabeth Lacy.

“We find no relevant distinction between the circumstances in Lawrence and the circumstances in the present case,” wrote Lacy, noting that the Supreme Court had ruled 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.”

Lacy found that the court’s 1990 precedent barring a person from seeking a recovery for injuries sustained during illegal activity could not apply to this case.

“The sexual activity between Martin and Ziherl was not illegal and ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’” wrote Lacy, quoting from Lawrence v. Texas.

The case was sent back to the Richmond County Circuit Court to give Martin a chance to prove that she had been negligently or intentionally infected by Ziherl.

The court’s ruling should dispel any remaining doubt whether the Virginia sodomy law is unconstitutional in light of Lawrence v. Texas. However, this would not be directly relevant in on ongoing dispute between local law enforcement officials involved in rest stop raids and gay men who claim they are victimized because of their sexual orientation, since the Virginia court did emphasize, as had the U.S. Supreme Court in Lawrence, that the case did not involve “public activity.”

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Updated 5:17 pm, July 20, 2018
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