7 States Still Classify Cohabitation as Illegal

Virginia and Six Other States Still Classify Cohabitation as Illegal

Laws: Couples living together outside marriage can be cited for "lewd, lascivious" conduct and rejected for certain jobs.

August 20, 2001

By ROBIN FIELDS, Times Staff Writer

The question lurked toward the bottom of a six-page affidavit, part of her application to become a juvenile probation officer in Phoenix. "Are you living in open and notorious cohabitation?" it asked, adding that doing so was a misdemeanor sex offense that would disqualify her for employment.

"I thought, well, I keep the blinds closed," said Debbie Deem of her then eight-year live-in relationship with her male partner. "This is none of the state's business." At a time when new census data show that more American couples than ever are living together outside marriage, seven states still ban such arrangements. Arizona is no longer one of them, having repealed its law in May.

But in Florida, Michigan, Mississippi, North Carolina, North Dakota, Virginia and West Virginia, "lewd and lascivious" male-female cohabitation remains illegal, a reminder that in parts of the nation, the conservative past still rubs up against the more liberal present.

Most such laws date from the 19th century; several lump cohabitation in with prohibitions against adultery and fornication. Typically, the offense is a misdemeanor punishable by a short prison term or a fine of up to $500. The statutes are rarely enforced, but they still can have dramatic effects, even if violators are never directly charged.

The state of Virginia, for example, has threatened not to renew the home day-care license of a Norfolk woman because a state inspector categorized her live-in partner of 17 years as her companion, rather than as a boarder, as previous inspectors had done. The ACLU has taken up her case. "I was really upset," said Darlene Davis, adding that she had never misrepresented her relationship to state regulators. "This is how I make my living. Why now, after all these years?"

In Charlotte, N.C., U.S. Magistrate Carl Horn habitually asks defendants, regardless of why they are before him, if their living arrangements violate the state's no-cohabitation law. If so, he refuses to release them unless they agree to marry, move or get their partner to relocate.

Dozens of people have been moved to marry, and at least one has proposed right in the courtroom. In states where private citizens can file misdemeanor criminal charges without triggering police investigations, people sometimes pursue cohabitation complaints against former spouses, often to gain leverage in divorce or custody disputes, attorneys said.

The laws do not appear to provide much of a deterrent to cohabitation, however. In the decade of the '90s, the number of unmarried-partner households nearly doubled from about 500,000 to more than 930,000 in the seven states that still ban cohabitation. By comparison, the nation overall experienced a 15% increase in the number of such households.

Gay-rights and singles-rights groups have joined forces to lobby against the measures still lingering on the books. "It's out of sync with reality," said Thomas Coleman, executive director of the American Assn. for Single People. Debbie Deem had a different solution. Sick of feeling like an outcast in Arizona, she moved to California several years ago, settling in Camarillo. "After a certain point, I just said, 'Get me out of here,' " she said. "If I'm considered a sex offender . . . it's time to go."

Virginia court strikes down law against sex by singles

THE ASSOCIATED PRESS January 15, 2005

The Virginia Ruling suggests sodomy law is unconstitutional as well, but leaves it alone.

RICHMOND: Supreme Court on Friday struck down an ancient and rarely enforced state law prohibiting sex between unmarried people. The unanimous ruling strongly suggests that a separate anti-sodomy law also is unconstitutional, although that statute is not directly affected. The justices based their ruling on a U.S. Supreme Court decision voiding an anti-sodomy law in Texas.

"This case directly affects only the fornication law but makes it absolutely clear how the court would rule were the sodomy law before it," said Kent Willis, executive director of the American Civil Liberties Union in Virginia. "It's a strong message to legislators that they must repeal Virginia's sodomy law," he said. "Now both the U.S. Supreme Court and the Virginia Supreme Court have spoken on essentially the same issue."

Virginia's anti-sodomy law prohibits oral and anal sex even for married couples, but gay-rights advocates say the statute is only used to target homosexuals. Legislators for years have rejected efforts to repeal the law. They left it on the books again last year even after the Lawrence v. Texas decision held that such laws is unconstitutional. "We find no relevant distinction between the circumstances in Lawrence and the circumstances in the present case," the Virginia justices said in voiding the fornication law.

The court said, "decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationships that are entitled to due process protection." The ruling stemmed from a woman's lawsuit seeking $5 million in damages from a man who infected her with herpes. She claims the man did not inform her that he was infected before they had sex.

Richmond Circuit Judge Theodore J. Markow threw out the lawsuit, ruling that the woman was not entitled to damages because she had participated in an illegal act. The Supreme Court reinstated the lawsuit. "The ruling recognizes that a sin greater than fornication is not telling someone you have a sexually transmitted disease and then not practicing safe sex," said the woman's lawyer, Neil Kuchinsky "The rule now should be: If not asked, do tell."

The law against fornication had been on the books since the early 1800s but was last enforced against consenting adults in 1847, according to Paul McCourt Curley, attorney for the defendant in the lawsuit.

Curley said he sees nothing wrong with having laws on the books, even if they are not enforced, that say, "these are the ideals and morals of the state of Virginia." He said the ruling sends a message that virtually anything goes even adultery as long as sex is consensual. However, the justices noted that their ruling "does not affect the commonwealth's police powers regarding regulation of public fornication, prostitution, or other such crimes.

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