ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, March 31, 1996 TAG: 9603290113
SECTION: EDITORIAL PAGE: G-3 EDITION: METRO
SOURCE: JACK E. CALL
IN MY criminal-law classes, I often cite Virginia's fornication statute as an example of an outdated law that remains on the books. A leading textbook on Virginia criminal law indicates that the last documented prosecution for fornication was in the late 1800s, even though fornication (sexual intercourse with someone to whom one is not married) must be one of the most frequently committed crimes in the commonwealth.
But there seems little harm in a criminal statute remaining on the books that no one cares to enforce, and that would result only in a very minor penalty if prosecutors lost leave of their senses and did enforce it.
That's precisely what I used to tell my students. But no more. The fornication statute does not have to be enforced to have undesirable consequences. Two recent events support this conclusion.
The first involves the incident at a Virginia Tech dormitory in 1994 that has given rise to a civil action against the school and two football players by a former student who alleges the players raped her.
This case has taken some unusual twists and turns, including a recent amendment of the plaintiff's complaint. An accused player indicated to the press through his attorney that any sexual contact was consensual. This prompted the plaintiff's attorney to add to the lawsuit an allegation of defamation of character. The reasoning: The player has publicly (and falsely) accused the plaintiff of fornication. Since fornication is still a crime in this state, the accusation defames the plaintiff's character.
This is the kind of tactical move that only a lawyer can love. In a strictly technical sense, of course, the plaintiff's lawyer is correct. In the real world in which the rest of us try to live, it seems ludicrous. Even if the facts eventually demonstrate that the plaintiff has been falsely accused of premarital sex, what would be the monetary damages? Except for a couple of presidential candidates, it is difficult to recall any real-life examples of persons whose lives and careers have been badly damaged by accusations of premarital sex.
More to the point, is there any value in adding to this case the question of whether the plaintiff's character has been defamed by the player's comment? Losing the lawsuit would damage the plaintiff's reputation 100 times more than the allegation that she is guilty of fornication. If she wins, damages for sexual assault will not be affected substantially by the additional harm caused by the apparently false statement of one of the principals that the sex was consensual.
This lawsuit raises significant issues about the appropriate role of a university judicial system and about the care used by the Tech football program in recruiting its players. Adding the issue about false allegations of fornication seems to trivialize the case and detract from its legitimate significance. The distraction would not be possible if this outdated fornication statute were not cluttering up the Virginia code.
A second event demonstrating the mischief outdated laws can cause involves a case decided by the Virginia Supreme Court in 1990. In that case, a woman had contracted the Herpes virus from her husband. Her husband knew he had the virus when he had sex with his wife and knew that she could catch the virus from him if they had sex together. Nevertheless, he failed to tell her about his condition or take any other action to protect her from catching the disease. She sued for compensation for the damages suffered as a result of contracting Herpes.
The only catch was that the wife caught the virus as a result of sexual intercourse between her and her husband before they were married - as a result, in other words, of fornication. The Virginia Supreme Court noted the long-standing legal rule that a person "who consents to and participates in an immoral or illegal act cannot recover damages from other participants for the consequence of that act." Since fornication is an illegal act in Virginia, the wife could recover no damages.
The rule that one should not be able to recover damages for the consequences of one's own immoral or illegal acts sounds good, but its application in this case seems unfair. Is it more important to discourage people from engaging in nonmarital sex than to discourage them from informing potential sex partners that they have a sexually transmittable disease? The existence of the outdated fornication statute provided an easy way out for the court. It discouraged the court from coming to grips with this important public-policy question.
Advocating the repeal of an outdated law like the fornication statute does not mean that one believes nonmarital sex is a good idea or morally acceptable. The fact that there is a criminal statute prohibiting nonmarital sex in Virginia should not have been a factor in the Herpes case nor should it be a factor in the Virginia Tech case. This is a statute that no one takes seriously until some lawyer seizes upon it as a way to benefit his or her client. Afterward, the mischief created by the statute is quickly forgotten.
Virginia's legislators should look through the Virginia code, and perhaps survey the Virginia bar, to identify outdated statutes. They can and do bring about unintended consequences.
Jack E. Call is a professor of criminal justice at Radford University.
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