Last edited: January 07, 2005

ACLU Defends Privacy for Love

The Washington Times, October 17, 2002
Cox News Service

ATLANTA—For 169 years, it’s been a crime in Georgia for anyone to have sexual relations out of wedlock.

But an American Civil Liberties Union lawyer on Tuesday asked the Georgia Supreme Court to toss the government “out of the bedroom” by throwing out the state’s fornication law.

“Hundreds of thousands of Georgians, even those in long-term relationships, are criminals, criminals under this law, even if they engage in these private acts in their own house,” ACLU lawyer Gerry Weber said in arguments before the court.

A violation of the fornication statute, enacted in 1833, is a misdemeanor and carries a sentence of up to a year in prison and a $1,000 fine. Only 13 states still have similar laws on the books. The statute is rarely used.

The challenge is being brought by a teenager described in court papers as J.M. A year ago, he was prosecuted as a 16-year-old after he was found having sexual relations with his girlfriend in her Fayette County home. Although the girl, identified by court records as J.D., placed a stool against her bedroom door, her mother caught them in the act at about 3 a.m.

J.M., now 17, was ordered to pay a fine and write an essay on why he shouldn’t have engaged in sex. He politely wrote that it wasn’t any of the court’s business, said another one of his attorneys, Catherine Sanderson.

Mr. Weber, who heads the Atlanta office of the ACLU, urged the court to follow a precedent set in 1998 when the court overturned the state sodomy law on privacy grounds.

The sex by both J.D. and J.M., who had been dating for six months, was consensual, Mr. Weber added. “This was a bedroom in a house, the most private of all places.”

A number of the court’s justices, however, wondered whether privacy rights carry over to people who are visitors. “Why does J.M. have a right to assert a right to privacy in someone else’s bedroom?” Chief Justice Norman Fletcher asked.

Mr. Weber answered that the U.S. Supreme Court has ruled privacy rights extend to houseguests. He also said that J.M. had been invited by his girlfriend and had previously been allowed by her parents to visit.

But Jamie Inagawa, an assistant district attorney from the Griffin Judicial Circuit, said that J.M. knew he didn’t belong in the house at that time and was therefore not entitled to a right of privacy.

Justice Harris Hines wanted to know if J.D. had permission to invite her boyfriend into the house.

Mr. Inagawa said that the boy had been allowed to come over to his girlfriend’s house in the past. On this occasion, the prosecutor said, “Yes, she did invite him — unbeknownst to the owner of the house.”

Mr. Inagawa also told the justices they should take into account the fact the teenagers were minors at the time of the offense.

Justice Leah Ward Sears then asked, “But if they were 17, they’d still be guilty. If they were 18, they’d still be guilty. Isn’t that right?”

Mr. Weber, noting that 16-year-olds are allowed to marry and buy contraceptives in Georgia, said the law applies to anyone, even if they were 55 or 75 years of age. If these people have sex out of wedlock, he said, “they are made a criminal under this 1833 law.”

According to the U.S. census, there are 145,000 unmarried couples in Georgia. The state Supreme Court does not have to issue its ruling until early next year.

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