Turn Off the Light and Get That Out of Your Mouth!

A post entitled Top Ten WTF? US Sex Laws was getting a lot of Diggs today - understandably, I suppose. Two of the mentioned laws caught my eye because they were... um... in local jurisdictions. They are:

"2. In Virginia it is illegal to have sex with the lights on."

-and-

"5. Engaging in any sexual position other than missionary is illegal in Washington, DC."

I know there are a lot of useless laws still on the books that legislatures haven't gotten around to repealing and haven't been challenged in the courts, but I also know better than to believe everything I read on the internet. So I decided I would look into these a bit.

The DC law is easy. There is no sign of it in the DC code, and at some point DC repealed the entire section on indecency where such a provision, if it ever existed, probably resided. So, feel free to mix it up in the District.

Virginia turned out to be a little more tricky. The Code of Virginia devotes Title 18.2 Chapter 8 to "Crimes Involving Morals and Decency." Among the long list of unsavory topics covered by the chapter (including gambling, prostitution, bestiality, obscene books, and bigamy) there were three statutes that, facially, make criminals out of a whole lot of well-meaning and otherwise law-abiding folks.

They are:

§ 18.2-344. Fornication: "Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor."

§ 18.2-345. Lewd and lascivious cohabitation: "If any persons, not married to each other, lewdly and lasciviously associate and cohabit together, or, whether married or not, be guilty of open and gross lewdness and lasciviousness, each of them shall be guilty of a Class 3 misdemeanor; and upon a repetition of the offense, and conviction thereof, each of them shall be guilty of a Class 1 misdemeanor."

§ 18.2-361A. Crimes against nature; penalty: "If any person... carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony..."

Shocked? Imagine how uncomfortable the floor debate over these bills must have been way back in the early 19th century. (An old version of the last one used the classy term "buggery.")

Thankfully, the courts have granted us (some) relief from the prying whims of narrow-minded legislators.

Fornication:
This statute was indeed intended to punish all sex outside of marriage, but the last conviction occurred before the civil war. However it has been invoked to support public policy arguments against sex outside of marriage. But in 2005, the law was finally ruled unconstitutional when a man who was being sued by an ex-girlfriend for knowingly giving her herpes argued in his defense that he could not be liable for damages suffered by a willing co-venturer in an illegal sexual relationship. Martin v. Ziherl, 269 Va. 35 (2005). The Virginia Supreme Court invalidated the Va. statute citing the recent U.S. Supreme Court decision in Lawrence v. Texas: "[T]he 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." Lawrence, 539 U.S. at 577.

So why does the statute remain on the books? The decision only invalidated the statute "as applied." Because the court found that the statute could be applied to cases lacking consent, involving minors, or involving public acts, it wasn't entirely unconstitutional. However, there are lots of other laws on the books that cover these other situations. This law is clearly intended to target the activities of consenting adults anywhere. A plain reading of it is misleading and totally uninformative about where the line is between legal and illegal conduct. Consequently, this law needs to be repealed.

Lewd and Lascivious Cohabitation:
This statute has two distinct parts. The first applies only to unmarried people and proscribes living with or routinely shacking-up with someone with whom you have a sexual relationship. The second part applies to married and unmarried folks alike and proscribes public displays of affection that cross the line into "lewd and lascivious" conduct.

This statute gets a lot more use than the fornication statute, but most charges stem from public acts outlawed by the second part. The last recorded conviction for private, consensual cohabitation was recorded in 1883.

The second part of the statute could be source of the alleged Virginia prohibition on having sex with the lights on. In one case, the defendants were acquitted when police officers saw the offenders in their home as the wind blew the drawn curtains to the side. Perhaps another case stands for the proposition that if you have the curtains open and lights on so that you are in view of the public you violate the second part of the statute.

In any case, the first part of the statute has not been challenged since the Loving decision, and it probably would not hold up. Consequently, it should be appealed along with the fornication statute.

Crimes Against Nature
This one, a prohibition on oral and anal sex, is also unconstitutional in light of Loving. Prior to Loving, the constitutionality of this statute was upheld, but it is hard to see how it might be constitutional today when applied to the private acts of consenting adults. Though I have little doubt it will stay on the books, like the fornication statute, to be piled onto charges otherwise illegal activity. But if that is all it is good for, why not clear things up with an amendment?

I'm not a fan of these long-outdated laws. Aside from the fact that they provide opportunities for selective, discriminatory enforcement against unpopular groups, they also contribute to a general lack of respect for the law by making nearly everyone a criminal at one point or another. Anyone who has ever argued against amnesty for illegal immigrants had better agree with me on this one or advocate throwing the book at slightly kinky couples everywhere.