Fornication in the U.S. Legal System
Fornication is a term for consensual sexual intercourse that is done between two people who are not married to each other. The term fornication often has religious or moral implications of many because of its association to religions and certain cultural values. Its meaning does vary between different societies, cultures, and religions.
Under common law, fornication was unlawful sexual intercourse that took place between a man and an unmarried woman, regardless of the marital status of the man. In the case that the woman was married, it would not be fornication but rather adultery. On a more modern basis, the term fornication tends to be replaced with secular terms such as sex before marriage, extramarital sex, or premarital sex.
Acts of fornication, such as adultery or premarital sex are usually looked at as private issues as long as they are between heterosexuals who are consenting and are at the age of consent. In these situations, these acts are usually prosecuted by common law as criminal offenses.
However, 16 different American jurisdictions from eastern and southern had passed various statutes against fornication. However, they were eventually repealed, struck down by courts, or are now not enforced. For jurisdictions where fornication is not enforced, the idea behind it is that fornication is a victimless crime, thus there is no reason to prosecute the individual accused of the offense.
When looking at modern-day legislation, a situation where one of individuals engaging in sexual intercourse is already in a legal marriage to another third party, this is still considered adultery. Some statutes in different jurisdictions also declare that a married woman makes the act adultery to both parties regardless of whether the man is married or not.
Typically, penalties for fornication are very rarely enforced. In the case that the laws are enforced, it is typically done through imprisonment, a fine, or a combination of both. An example of this was in November of 1996 where an Idaho prosecutor brought forth fornication charges. They were set against a teenage couple as an effort to reduce teen pregnancy.
Some acts of fornication are placed under sodomy, which means they are prohibited under certain criminal laws. However, the 2003 Supreme Court decision of Lawrence v. Thomas made all these sodomy laws unconstitutional. Furthermore, it implies that acts between two unrelated adults that are consensual, private, and non-commercial cannot be controlled by law, including any laws against fornication. This is because controlling them by law would hurt the citizen’s right to privacy and liberty.
However, fornication can still be considered an element of many other of sexual offenses including incest, rape, or seduction.