Last edited: August 25, 2004

Virginia Adultery Case Goes from Notable to Nonevent

Washington Post, August 25, 2004

By Michelle Boorstein, Washington Post Staff Writer

For a while, it looked as if John R. Bushey Jr. might go down in history as the man who challenged Virginia’s anti-adultery law, which cost him his 32-year career as an attorney for the Shenandoah Valley town of Luray.

After pleading guilty last October to having sex with someone besides his wife of 18 years—who happens to be Luray’s town clerk—Bushey, 66, changed his mind and appealed, positioning himself to become a crusader in the movement to decriminalize consensual sex. That movement, led by the American Civil Liberties Union, got a major boost last year when the U.S. Supreme Court struck down the anti-sodomy law in Texas.

Then Bushey changed his mind again.

Last week, a Page County Circuit Court judge approved a deal that closed the book on the case without a trial. Bushey did 20 hours of community service, and in exchange prosecutors agreed not to pursue the case against him, wiping the misdemeanor from his record. He could have been fined as much as $250 if the conviction had stood.

So the case fizzled as a rallying cry and served only to underscore an old—if much-ignored—point: Adultery is illegal in Virginia. It is also illegal in Maryland, as it was in the District until the law there was repealed last spring.

Although prosecutors wouldn’t talk initially about their reasons for invoking the seldom-used law against Bushey, Assistant Commonwealth’s Attorney Glenn Williamson said yesterday that the state has an interest in punishing adultery. “We’re not out beating bushes and certainly we’re not peeking in windows,” she said. “However, in this case, it was thrown in our face.”

Bushey did not return phone calls, and neither his lawyer, ACLU attorney Rebecca Glenberg, nor Williamson would say much about the evidence. The other woman, Nellie Mae Hensley, 53, triggered the case by complaining to police about Bushey.

“I don’t think it was right that it was dismissed on him,” said Hensley of the case, which she said caused her so much stress that she sought therapy and medication.

Williamson said that once the ACLU became involved, he decided Bushey had been punished enough: He had admitted guilt, been asked to resign and done community service.

Like Prince William Circuit Court Judge Herman Whisenant Jr., Williamson, who usually works in Frederick County, was brought in from outside because everyone in Luray knew Bushey.

“I preferred the case be resolved rather than tried,” said Williamson, who said he has prosecuted adultery cases, though he couldn’t recall when. “If [Bushey] hasn’t learned that he shouldn’t be doing these things, an additional $250 fine wouldn’t make any difference. And as far as general deterrence, it should now be widely known that adultery is a crime in Virginia.”

Glenberg, of the ACLU’s Richmond office, said that as Bushey’s attorney, she wanted him to get the best possible deal. She said she is confident that civil liberties groups will continue to press for sexual privacy after the Supreme Court ruling.

In Luray, the case represents something less grand than the chance to help shape national privacy law.

“I grew up here, and I learned a long time ago not to pay attention because it’s typical small-town U.S.A.,” said Sam Price, a lawyer in Luray, population about 4,500. “Everybody’s a rumormonger, and you don’t know what to believe.”

Another woman, a financial adviser who spoke on condition that her name not be used, said she thinks local residents are too busy with the “petty and shameful stuff of small towns because they don’t have enough to keep themselves busy. . . . I think the law in this community is used as a weapon.”

Mayor Ralph Dean praised the work of Bushey, who now works in private practice in town. He also said he was glad a deal was reached in the case. “Then it’ll die,” he said, “and we won’t have to hear much about it.”

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