The Washington Post
September 5, 2004 Sunday

HEADLINE: Of Lust and the Law

BYLINE: Jonathan Turley

BODY:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

These morality laws go back to the church-based “bawdy courts” of 13th-century England. Yet, the Bushey case illustrates that there are prosecutors today who remain eager to perform this quasi-ecclesiastical role — to publicly defend the institution of the monogamous marriage, and the unwed, from the ravages of lust and desire. Because these are often unrecorded misdemeanor cases, the specific number of prosecutions is impossible to determine. However, the Bushey case is far from unique. Since 1980, adultery cases have been recorded from Alabama to Massachusetts to Pennsylvania. And in 2003, Georgia prosecuted an anti-fornication case.

This latest adultery prosecution, in a county circuit court in Virginia, should motivate us to finally ban our American version of bawdy courts and force ambitious prosecutors to focus on our courtrooms rather than our bedrooms.

For 32 years, John Bushey, 66, served as the attorney for Luray — a small Shenandoah Valley town of 4,500 people. He had been married for about 18 years to Cindy Bushey, the town’s clerk. John Bushey, however, had an affair with Nellie Mae Hensley, 53, and after the affair ended, Hensley seemed to prove the adage “scratch a lover, find a foe.” Instead of going to the betrayed spouse or to her minister, she went to the police. While Hensley was divorced, Bushey was married and therefore subject to a criminal adultery charge, a misdemeanor.

The Bushey case seemed like the perfect vehicle to get the U.S. Supreme Court to finish work that it began in the 2003 case of Lawrence v. Texas, when the Court struck down anti-sodomy statutes. At one point, Bushey agreed to pursue such a course, and the American Civil Liberties Union took up his case. He kept changing his mind, however, first pleading guilty, then withdrawing the plea and pledging to fight as a matter of principle. Finally, in August, he surprised many observers by accepting 20 hours of community service as punishment for his offense. (His former lover publicly expressed outrage that Bushey would not receive a criminal record for his adulterous affair with her.)

Unfortunately, with his last-minute acceptance of punishment, Bushey implicitly accepted that the state of Virginia has a right to punish him for his moral failings. The far more important question is not Bushey’s faithfulness to principle (or to marriage), but the continuation of this archaic criminal provision, which also exists in Maryland and the U.S. military. (Such a law was recently repealed in the District.) The prosecutor in Bushey’s case, Assistant Commonwealth’s Attorney Glenn Williamson, staunchly defends the state’s interest in prosecuting adulterers. When a former lover comes to the police, he insists, the state must prosecute. His rationalization is baffling since, according to studies, he could throw a stick on any corner and probably hit a couple of adulterers.

A famous 1953 study by Alfred Kinsey found that 50 percent of married men and 26 percent of married women had engaged in adultery by age 40. A recent study by Ball State University reported that women under 40 have caught up to men in adulterous affairs. Other studies have shown that between 5 to 15 percent of married couples have “open marriages.” If Virginia were going to prosecute evenly, untold married couples in the state could be subject to prosecution when a former lover opted for the satisfaction of a public charge to heal private injury.

Imagine the work for the courts if prosecutors vigorously enforced the laws against fornication, which is generally defined as premarital sex — a crime that a 1988 study found was practiced by more than 75 percent of women and more than 80 percent of men by the age of 19.

Williamson stressed that he had prosecuted other adulterers and was grateful that “as far as general deterrence, it should now be widely known that adultery is a crime in Virginia.” It is certainly widely known after Williamson has hoisted some wretch for all unfaithful spouses to contemplate. But is it right?

With the medieval bawdy courts, the Anglican Church tried the unfaithful and imposed criminal punishments for “whoredom.” At least six adulterers were executed in England. Since women were viewed as the property of their husbands, these cases were often tried as matters of theft or trespass to chattel. Bawdy courts were embraced by such organizations as the Society for the Reformation of Manners, which supplied the dirt on the unfaithful during the 17th and 18th centuries. These cases were called “criminal conversation” and were uniformly brought by cuckolded husbands. Notably, criminal conversation laws were repealed around the time that women were given the ability to bring such lawsuits in England in the 18th century.

When the Puritans landed in the New World, they wanted their own bawdy trials. There were no church courts, but most states eventually passed laws criminalizing an assortment of private consensual conduct ranging from sodomy to fornication to adultery.

In the Colonies, adultery was once a capital crime and there are at least three recorded cases of people who were executed for adultery, and others were branded with an “A” on their foreheads. (At least one other adulterer, Thomas Newton, escaped in Connecticut shortly before his hanging). Women were routinely stripped to the waist and publicly whipped. In many cases, the convicted were given heavy fines and shaming punishments. A common shaming punishment (taken from England) was recorded in a 1640s Virginia case: the unfaithful were ordered “to stand in the middle of the . . . church upon a stool in a white sheet, and a white wand in their hands, all the time of divine service and shall say after the ministers such words as he shall deliver unto them before the congregation there present and also pay the charges of the court.”

While bawdy courts once mandated harsh punishments for adultery, today’s laws generally have lesser sentences of up to a year in jail and small fines.

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described “morality advocates,” however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia’s criminal code, doesn’t approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is “a perfect example of how the Supreme Court is inserting its own views into Virginia law.” Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because “adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted.” While many would agree adultery is wrong, there are plenty of things that are “wrong” but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery.

The real reason these laws go unchallenged appears to be self-serving politics. Joseph F. Murphy Jr., chief judge of the Maryland Court of Special Appeals and chairman of a committee to overhaul the Maryland code, put it bluntly. “You can imagine what would happen if you tried to take adultery off the books at this point. You would have a large group of people who would complain bitterly about it as another example of that state losing its moral compass.”

It takes courage to take such an action — something apparently in short supply in Virginia, Maryland and some other states.

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete — it is statistically certain — with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted — making such prosecutions as random as a societal drive-by shooting.

Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a “whore’s chair” for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let’s put an end to them — and leave morality prosecutions as a matter of historical interest for 13th-century scholars.