Constitutionality of Virginia’s Fornication Statute, Martin v. Ziherl (amicus)
A woman sued her ex-boyfriend in the Richmond Circuit Court for knowingly transmitting herpes to her while they together. The court dismissed the case, based on a 1990 case in which the Virginia Supreme Court had held that such an action is barred, reasoning that a person who committed the crime of fornication could not sue for injuries resulting from it. However, after the U.S. Supreme Court case of Lawrence v. Texas, it is now clear that Virginia’s fornication law is unconstitutional. The plaintiff therefore argued that since she did not commit an “illegal act,” her action against the defendant cannot be barred. The trial court nonetheless dismissed the case. The judge found that Lawrence did not necessarily invalidate the fornication statute. The judge further held that even if the fornication statute is now invalid, Virginia nonetheless has a “public policy” against non-marital sex which barred suits for injuries arising from fornication. The Virginia Supreme Court agreed to hear the case. We filed an amicus brief on behalf of the plaintiff, arguing that the fornication law is unconstitutional, as is any “public policy” based on that statute. On January 14, 2005, the Virginia Supreme Court agreed with us, ruling that the statute is unconstitutional and could not bar the plaintiff’s suit.