Last edited: March 06, 2005

Judge Rules State Adultery Law Unconstitutional

Grand 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 tests.

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, Boening said.

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 adultery.

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 prosecute.

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