Judge Rules State Adultery Law Unconstitutional
Forks Herald, March 1, 2005
By the Associated Press
FARGO, N.D.—A judge has ruled
North Dakota’s rarely-used adultery law unconstitutional.
East Central District Judge Frank Racek said Monday that
the misdemeanor law fails federal and state constitutional equal protection
Racek ruled in the case of Lucius James Penn, 29, an Air
Force engineer who met a 16-year-old Fargo girl while on assignment to the
Grand Forks Air Force Base. Penn’s wife called Fargo police in August and
told them about the affair.
North Dakota’s adultery law requires a spouse to file a
complaint within one year of the act. It grants immunity to those who disclose
affairs during divorce or separation proceedings.
Assistant Cass County State’s Attorney Mark Boening
charged Penn, now of Las Vegas, with adultery and a felony charge of
corruption or solicitation of a minor. The prosecutor agreed Monday to change
the felony charge to a misdemeanor, saying he did not believe Penn knew the
girl was only 16 when they had sex. The girl could be mistaken for an adult,
The prosecutor also told Racek the girl did not want Penn
to serve jail time and still appeared to like him.
Penn, who took a bus from Nevada to make his court
appearance, pleaded guilty to a misdemeanor count of encouraging or
contributing to the deprivation or delinquency of a minor.
Racek ordered him to serve 15 days in jail, with credit
for the eight days he spent in a Nevada jail. Boening had asked for 30 days in
jail time and two years of unsupervised probation.
Gabriel Grasso, the Las Vegas attorney who defended Penn,
challenged the adultery charge on constitutional grounds.
“I think now the legislators are going to have to look
at that statute again,” he said after Monday’s hearing.
Racek said the state has a right to protect the
institution of marriage and to make adultery illegal, but he said the law
discriminates by allowing prosecution only if a spouse complains and by
granting certain people immunity.
Boening said he doubted his office would appeal the
decision. He said he must also read the nine-page ruling more closely to
decide whether or not the order would influence future decisions to charge
The last known case of an adultery charge before the
North Dakota Supreme Court is found in a 1925 opinion.
The high court refused to intervene in a 1999 case
involving a man who complained that the Morton County prosecutor would not
charge the man’s wife with adultery. The justices wrote that the
circumstances of the case gave the state’s attorney enough reason to not
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