More "On Legislating Morality": Fornication in Virginia

Following up on Michael's post (below) about adultery laws in Turkey, here is a recent Washington Post article, by law professor Jon Turley, called "Of Lust and the Law." Discussing (and criticizing) anti-fornication laws, Turley writes:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

These morality laws go back to the church-based "bawdy courts" of 13th-century England. Yet, the Bushey case illustrates that there are prosecutors today who remain eager to perform this quasi-ecclesiastical role -- to publicly defend the institution of the monogamous marriage, and the unwed, from the ravages of lust and desire. Because these are often unrecorded misdemeanor cases, the specific number of prosecutions is impossible to determine. However, the Bushey case is far from unique. . .
This latest adultery prosecution, in a county circuit court in Virginia, should motivate us to finally ban our American version of bawdy courts and force ambitious prosecutors to focus on our courtrooms rather than our bedrooms.

For 32 years, John Bushey, 66, served as the attorney for Luray -- a small Shenandoah Valley town of 4,500 people. He had been married for about 18 years to Cindy Bushey, the town's clerk. John Bushey, however, had an affair with Nellie Mae Hensley, 53, and after the affair ended, Hensley seemed to prove the adage "scratch a lover, find a foe." Instead of going to the betrayed spouse or to her minister, she went to the police. While Hensley was divorced, Bushey was married and therefore subject to a criminal adultery charge, a misdemeanor.

The Bushey case seemed like the perfect vehicle to get the U.S. Supreme Court to finish work that it began in the 2003 case of Lawrence v. Texas, when the Court struck down anti-sodomy statutes. At one point, Bushey agreed to pursue such a course, and the American Civil Liberties Union took up his case. He kept changing his mind, however, first pleading guilty, then withdrawing the plea and pledging to fight as a matter of principle. Finally, in August, he surprised many observers by accepting 20 hours of community service as punishment for his offense. (His former lover publicly expressed outrage that
Bushey would not receive a criminal record for his adulterous affair with her.)

Unfortunately, with his last-minute acceptance of punishment, Bushey implicitly accepted that the state of Virginia has a right to punish him for his moral failings. The far more important question is not Bushey's faithfulness to principle (or to marriage), but the continuation of this archaic criminal provision . . .

A famous 1953 study by Alfred Kinsey found that 50 percent of married men and 26 percent of married women had engaged in adultery by age 40. A recent study by Ball State University reported that women under 40 have caught up to men in adulterous affairs. Other studies have shown that between 5 to 15 percent of married couples have "open marriages." If Virginia were going to prosecute evenly, untold married couples in the state could be subject to prosecution when a former lover opted for the satisfaction of a public charge to heal private injury. . . .

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described "morality advocates," however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia's criminal code, doesn't approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is "a perfect example of how the Supreme Court is inserting its own views into Virginia law." Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because "adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted." While many would agree adultery is wrong, there are plenty of things that are "wrong" but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery. . . .

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete -- it is statistically certain -- with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted -- making such prosecutions as random as a societal drive-by shooting.
Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a "whore's chair" for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let's put an end to them -- and leave morality prosecutions as a matter of historical interest for 13th-century scholars.

Now, I usually enjoy and learn from Turley's commentary, and I agree that anti-fornication laws are unwise. Still, what I take to be the premise of Turley's critique -- namely, that criminal laws that enforce traditional morality are, for that reason, unconstitutional and unjust -- strikes me as quite mistaken.

Turley says (unfairly, in my view) that "like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens." But all political communities "use criminal penalties to police the morality of [their] citizens." The question is not, in my view, whether the criminal law should reflect and protect "morality"; the (harder) question is to what extent the criminal law should do this.

There are, as MOJ readers and bloggers know, all kinds of good, prudential reasons to avoid excessive legal moralism. The criminal law need not and should not codify morality wholescale. Not every sin or vice is or should be a crime. Maybe Turley is trying to say not that criminal law should not enforce "morality", but that it should not enforce sexual morality. I tend to agree with this latter proposition, if only because -- in light of the dominant views on these matters -- it is probably not feasible or cost-effective (as Turley discusses) to criminalize sexual immorality. But I wish that Professor Turley had taken more care to avoid sweeping claims about "morality prosecutions." Aren't all prosecutions, in the end, "morality prosecutions"?

Rick