Martin v. Ziherl, 607
S.E.2dThe South Eastern Reporter and South Eastern Reporter Second are United States regional case law reporters. It is part of the National Reporter System created by John B...
367 (Va. 2005), was a case decided by the
Supreme Court of VirginiaThe Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of...
, which ruled that the
VirginiaThe Commonwealth of Virginia is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" because it is the birthplace of eight U.S. presidents. The geography and climate of the state are shaped by the Blue...
criminal law against
fornicationFornication is a term which typically refers to voluntary, illicit sexual intercourse between persons not married to each other. The origin of the word derives from Latin. The word fornix means "an archway" or "vault" and it became a common euphemism for a brothel as prostitutes could be solicited...
was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in
Lawrence v. TexasLawrence v. Texas, 539 U.S. 558 , was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v...
that established the right of adults to engage in private, consensual sex.
Muguet Martin and Kristopher Ziherl were an unmarried couple who had been in a sexually active relationship for two years when Martin's doctor diagnosed her with herpes.
Martin v. Ziherl, 607
S.E.2dThe South Eastern Reporter and South Eastern Reporter Second are United States regional case law reporters. It is part of the National Reporter System created by John B...
367 (Va. 2005), was a case decided by the
Supreme Court of VirginiaThe Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of...
, which ruled that the
VirginiaThe Commonwealth of Virginia is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" because it is the birthplace of eight U.S. presidents. The geography and climate of the state are shaped by the Blue...
criminal law against
fornicationFornication is a term which typically refers to voluntary, illicit sexual intercourse between persons not married to each other. The origin of the word derives from Latin. The word fornix means "an archway" or "vault" and it became a common euphemism for a brothel as prostitutes could be solicited...
was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in
Lawrence v. TexasLawrence v. Texas, 539 U.S. 558 , was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v...
that established the right of adults to engage in private, consensual sex.
Background of the case
Muguet Martin and Kristopher Ziherl were an unmarried couple who had been in a sexually active relationship for two years when Martin's doctor diagnosed her with herpes. She then filed a
lawsuitA lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant's actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
against Ziherl in the
RichmondRichmond is the capital of the Commonwealth of Virginia, in the United States. Like all Virginia municipalities incorporated as cities, it is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
Circuit Court, alleging that he knew he was infected with herpes when they had unprotected sex, knew it was contagious, and failed to inform her. Her
complaintIn general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, etc. In legal terminology, a complaint is a formal legal document that sets out the basic facts and legal reasons that the filing party believes are sufficient to support a...
claimed
negligenceNegligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries . Negligence is a type of tort or delict . However, the concept is sometimes used in criminal law as well...
, intentional
batteryAt common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
and
intentional infliction of emotional distressIntentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...
, for which she sought compensatory and punitive damages.
The Supreme Court of Virginia had ruled in
Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), that
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
s could not recover damages for injuries suffered while participating in illegal conduct. As sex between unmarried persons was criminalized under Virginia's anti-fornication statute, Ziherl filed a
demurrerA demurrer is a legal pleading filed by a party defending against claims or defenses in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party. This is referred to as challenging the "legal sufficiency" of a claim, cause of...
in response to Martin's suit. Judge Theodore J. Markow rejected Martin's argument that the statute was no longer valid after
Lawrence v. Texas, in which the U.S. Supreme Court struck a
TexasTexas is the second-largest U.S. state in both area and population, and the largest state in the contiguous United States.The name had wide usage among native Americans, meaning "friends" or "allies"...
law criminalizing homosexual
sodomySodomy is a term used today predominantly in law to describe the act of anal intercourse, oral intercourse, or bestiality.- Definitions :...
as an infringement upon the liberty of adults to engage in private and consensual intimate conduct under the
due processDue process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law...
clause of the
Fourteenth Amendment to the United States ConstitutionThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
. Judge Markow instead believed the fornication prohibition satisfied the
rational basis reviewRational basis review, in U.S. constitutional law, is the lowest level of scrutiny applied by courts deciding constitutional issues through judicial review. The higher levels are typically referred to as intermediate scrutiny and strict scrutiny...
that
Lawrence ruled the Texas statute failed, because the fornication law was reasonably related to the legitimate government goals of protecting public health and encouraging marriage for procreation. Ziherl's demurrer was sustained, resulting in the dismissal of Martin's suit. She subsequently appealed to the Virginia Supreme Court.
On appeal, Ziherl argued that Martin lacked
standingStanding or locus standi is the term for ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to challenge the constitutionality of the statute because she was under no threat of prosecution, and so invalidation would not impact her liberty but would only allow her to pursue her lawsuit against him. The court refused to consider this argument, however, because of the longstanding rule that it would not consider a standing argument that was not first made at the trial court level.
The Court's decision
The Virginia Supreme Court unanimously ruled that the Virginia fornication law violated the
Fourteenth AmendmentThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
. Because the conduct by which Martin was allegedly injured could not be considered illegal,
Zysk did not apply and she could proceed with her suit against Ziherl in the Richmond Circuit Court.
Lawrence v. Texas was the sole foundation for the court's ruling, and so the majority of its opinion was an interpretation of that decision. The U.S. Supreme Court in
Lawrence had stated that it was adopting the reasoning of
JusticeAssociate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
John Paul StevensJohn Paul Stevens is the senior Associate Justice of the Supreme Court of the United States. He joined the Supreme Court in 1975 and is the oldest member of the Court. He was appointed to the Court by Republican President Gerald Ford. Stevens is widely considered to be on the liberal side of the...
in his dissent to
Bowers v. HardwickBowers v. Hardwick, , was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. Seventeen years later the Supreme Court directly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 ,...
, which
Lawrence overruled. The Stevens rationale, as the Virginia Supreme Court presented it, was that "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 Virginia Supreme Court stated that
sexual intercourseSexual intercourse, also known as copulation or coitus, commonly refers to the act in which the male reproductive organ enters the female reproductive tract. The two entities may be of opposite sexes or not, or they may be hermaphroditic, as is the case with snails...
was clearly part of the personal relationship of an unmarried couple, and that criminalizing intercourse clearly infringed upon their constitutionally protected right to make intimate choices.
Regarding Ziherl's argument that the statute served valid public interests, the court stated that in
Lawrence, the U.S. Supreme Court had ruled that the Texas sodomy statute furthered "no legitimate state interest" that could justify infringing the right to intimate contact. The Virginia Supreme Court interpreted this to mean that
all state interests must be insufficient to justify a prohibition on private, consensual sexual conduct, rather than only those advanced by Texas to support its statute in
Lawrence. The court was careful to note that this did not pertain to laws involving minors, non-consensual or public sexual activity, or
prostitutionProstitution is the act or practice of engaging in sex acts for hire. In most cultures, prostitution is viewed by many as a deviant profession, either illegal or socially discouraged...
, all of which the
Lawrence Court also distinguished.
The Virginia Supreme Court made no reference to any earlier decisions finding anti-fornication statutes unconstitutional, such as
State v. Saunders, 381
A.2dThe Atlantic Reporter is a United States regional case law reporter. It is part of the National Reporter System created by John B. West for West Publishing Company, which is now part of Thomson West....
333 (
N.J.The New Jersey Supreme Court is the highest court in the U.S. state of New Jersey. It has existed in three different forms under the three different state constitutions since the independence of the state in 1776...
1977).
See also
- Sex-related court cases in the United States
The United States Supreme Court and various U.S. state courts have decided several cases regarding pornography, sexual activity, and reproductive rights. The trend has been one of courts striking down states' attempts to regulate sex....
- judicial review
Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a...
- substantive due process