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Friday, October 18, 2002 06:38 a.m.

After Alabama dildoes, it's Georgia Fornication!

In the wake of the decision of the Federal District Court (Williams v Pryor) striking down Alabama's ban on vibrator sales, the Georgia Supreme Court is hearing arguments (Re JM) whether the state's crime of fornication infringes rights under the Georgia and US Constitutions.

The facts couldn't be simpler: a 16 year old unmarried couple went up to the girl's bedroom, got naked and

decided to engage in consensual sexual intimacy

No other crime (such as statutory rape) had been committed by the pair. And the girl's parents, though no doubt telling the boy what they thought of him, made no complaint to the police: the case was initiated by a jobsworth probation officer.

The legal issues are set out in the Petition; interestingly,

• no claim is made that privacy rights under the US Constitution have been infringed (the ground of success in the Alabama case)

  Two likely reasons:

  • the Georgia Constitution provides broader privacy rights than the US; and,
  • the last time a privacy challenge to a Georgia sex law went before the Supremes (see below), it was given the bum's rush (as it were.....)

• a claim is made that the Georgia law infringes freedom of association rights under the 1st Amendment of the US Constitution (though the Amendment is more usually heard of in the context of freedom of expression, there is a considerable body of caselaw cited on its application to 'intimate' associations).

The attitude of the court in Bowers was pretty much diametrically opposed to that of the judge in Williams (he sounds like he thinks Bowers is distinctly past its sell-by date):

• to get a law struck down on (US) constitutional grounds, a person usually needs to show that it has infringed a 'fundamental right': the Bowers court said the appellant in that case was claiming that American society recognised was 'a right to sodomise' (naturally he lost!). The right that he was actually trying to claim existed in American society was a right to sexual privacy - a point which the judge in the Williams case showed was quite arguable;
  
• they expressed themselves ill-disposed towards extending the range of laws subject to striking down by 'inventing' new 'fundamental rights';
  
• they narrowly interpreted the then (and still?) 'high-water-mark' of sexual privacy jurisprudence, Stanley v Georgia.

But when the same law came up against the Georgia Constitution in Powell v State (1998), it was struck down.

Surprising though it may seem, Georgia's was apparently the first constitution to be found to provide a privacy right, as far back as 1905 - a decade before Leo Frank was lynched! -in the Pavesich case; which, to judge from the quotations given in Powell, took a pretty broad view of the concept [7]. The Court in Powell approached the matter in something of the same spirit.

One point that arose during oral arguments earlier this week was that few fornication cases reached trial in Georgia; most (all?) fornication convictions resulted from the pleading down of statutory rape cases.

The scope for what is euphemistically termed selective prosecution was noted: fornicators told to help the authorities - with evidence in court, undercover work, or whatever prosecutors and police need - and the embarrassing charges will magically disappear! (The Mann Act offers similar temptations for such blackmail.)

And, lest fornication cases in Georgia be thought a trivial matter, note that the girl was actually sentenced to 90 days: the maximum sentence for fornication (section 17-10-3 of the Georgia Code) is 12 months.

From a broader perspective, the chance must be that the Georgia court will decide the case in favour of the appellant boy on the first - and perhaps strongest - ground, namely the Georgia Constitution's right to privacy; thus making it unnecessary to set any sort of precedent in relation to the US Constitution.

But if the Georgia court decides to rule on the US Constitution issues, from this side of the Atlantic, it would seem to offer fascinating (if, perhaps, merely theoretical) opportunities for conflict with the Federal courts.

Could a certiorari petition be engineered (in this or some other case) that would get the Supremes to review the Bowers case? Would such a review be a 'good thing'? A triumphant re-affirmation of Bowers by a right-shifted court might be less than welcome!)

Or perhaps the Court would prefer to see Bowers wither on the vine whilst state courts strike down antiquated sex laws under state constitutions?

In which case, is there a state with a constitution so oppressive that its citizens need the US Constitution to strike down its fornication, adultery sodomy and similar laws? (A challenge has apparently been launched in Federal court against the sodomy laws of - Alabama!)

[There is a passably interesting Nation article (from 1999) on such laws now available only here.]

[Original link via Howard Bashman.]

1. The Petition talks about 'a consensual act of intimacy and affection'. Is 'intimacy' a technical term for intercourse? What exactly does fornication cover, apart from vaginal intercourse? I suspect that many 16 year olds would doing more oral than vaginal - but perhaps I'm old-fashioned!
2. The PDF original apparently no longer on the site
3. 478 US 186
4. at p57-8
5. 394 US 667
6. 270 Ga 327; Florida Law Review article
7. How was this right squared with Georgia's anti-miscegenation laws, I wonder? The earliest case cited as following Pavesich dates from 1956, as far as I can see.