When an Idaho County Prosecuted Teenagers for Fornication

What happened in Gem County in 1996?

In 1996, officials in Gem County, a rural county in western Idaho near Boise, began charging unmarried teenagers with fornication, a misdemeanor that had gone unused for generations ^[1][2]. The campaign was led by the county prosecutor, Douglas R. Varie, then 33, with the backing of Sheriff Mark John ^[1][2]. Its declared target was teen pregnancy rather than sexual morality in general: Varie wrote that children having children placed a heavy burden on society ^[2].

The first defendant was Amanda Smisek, a 17-year-old high-school senior and part-time waitress in Emmett, the county seat, a town of about 4,600 people ^[1]. She was seven months pregnant when a summons reached her in the spring of 1996 ^[2]. Her 16-year-old boyfriend, Chris Lay of Boise, was charged as well ^[1].

The number of cases was never officially disclosed. In mid-July, The Seattle Times counted about half a dozen people charged in the county ^[1]. In November, a New York Times News Service report put the figure at about ten pregnant girls, along with their boyfriends ^[2]. Varie declined to give a number to Religion News Service, and a county public defender, Nancy Callahan, estimated "six to 10 kids" ^[3].

The story did not stay local. The Seattle Times, the New York Times News Service and Religion News Service all published dispatches from Emmett during 1996 ^[1][2][3]. Their accounts, which differ on a few details noted below, are the main record of the episode.

Timeline

1. 1921Idaho enacts the fornication law later revived in Gem County, according to 1996 press reports.
2. 1972The offense is re-enacted as Idaho Code § 18-6603: a fine of up to $300, up to six months in jail, or both.
3. Spring 1996Prosecutor Douglas Varie begins charging pregnant teenagers and their boyfriends; 17-year-old Amanda Smisek is the first.
4. May 1996Smisek is convicted after a juvenile court trial; her 16-year-old boyfriend pleads guilty. Both receive probation.
5. November 1996A New York Times report counts about ten pregnant girls charged in the county, along with their boyfriends.
6. June 26, 2003Lawrence v. Texas protects private, consensual intimate conduct between adults, while leaving cases involving minors aside.
7. October 25, 2021A subcommittee of the Idaho Criminal Justice Commission agrees to repeal the adultery and fornication statutes.
8. July 1, 2022Senate Bill 1325, signed on March 22, 2022, takes effect and removes the fornication offense from Idaho law.

Which law did prosecutors use?

Prosecutors used Idaho's fornication statute, which made it a crime for an unmarried person to have sexual intercourse with an unmarried person of the opposite sex ^[4]. In the Idaho Code the offense appeared as § 18-6603, a section whose history note dates its modern wording to 1972, chapter 336 ^[4]. The 1996 press described the underlying law as dating from 1921 ^[1][2], and Religion News Service called it a 75-year-old law ^[3]; the 1972 text was a re-enactment within the state's revised criminal code.

The penalty was modest by criminal standards. A conviction could bring a fine of up to $300, up to six months in jail, or both, and the court could suspend the sentence with or without probation ^[4]. The Seattle Times cited the law as "statute 6604" ^[1], but the codified fornication section was § 18-6603 from 1972 until its repeal.

The wording of the statute mattered to critics. It did not mention age: it applied to any unmarried person, as a family friend of the Smiseks pointed out ^[2]. Yet in Gem County it was used only against teenagers, and Varie acknowledged to Religion News Service that he had not charged any unmarried adults ^[3]. Across the state line, The Seattle Times noted, Washington had no fornication law at all ^[1].

Who was charged and what sentences followed?

Those charged were mainly pregnant teenage girls and their boyfriends, and most of them pleaded guilty ^[2]. Smisek was the exception. She pleaded not guilty and went to trial in May 1996 before a juvenile court judge, where her lawyer argued without success that the law was being enforced selectively ^[1][2]. A county magistrate, Gordon Petrie, heard both her case and her boyfriend's ^[3].

The sentences avoided jail but came with long conditions. According to Religion News Service, Smisek received a 30-day suspended detention sentence and three years of probation, while Lay, who pleaded guilty, received a 30-day suspended jail sentence, three years of probation and 40 hours of community service ^[3]. The Seattle Times also mentioned a $10 fine for Lay ^[1], whereas the New York Times account said the couple received probation rather than jail or fines ^[2].

The probation terms reached into daily life. They included joint parenting classes, finishing high school, keeping steady employment and avoiding drugs, alcohol and cigarettes ^[2][3]. Because the cases ran through juvenile court, the records were to be sealed once each defendant turned 18 ^[2].

Smisek gave birth to a son, Tyler, on May 28, 1996 ^[3]. Her mother, Jody, a nurse's aide, told The Seattle Times that the family could not afford to pursue an appeal ^[1].

Why did officials target pregnant teenagers?

Officials said they were targeting the consequences of teen sex, above all pregnancies that ended up relying on public assistance. The Seattle Times reported that teenage parents on public assistance were the primary targets and that the county had acted out of alarm at the rising number of young unwed mothers on welfare rolls ^[1]. Smisek's own case began when she applied for pregnancy-related state medical aid and a welfare official notified the Emmett police, who referred the matter to the prosecutor ^[1]. Other cases reached the prosecutor through teachers, relatives or social workers ^[2].

Figures on the local problem varied between reports. The Seattle Times put Gem County's teen pregnancy rate at about 80 per 1,000, among the highest in Idaho but roughly three-quarters of the national average ^[1]. The New York Times report gave 84 per 1,000 teenagers, slightly below the national average but about 50 percent above Idaho's ^[2].

Varie denied singling out girls on Medicaid. He said he had acted after learning of a pregnancy resulting from consensual relations between two minors, and he noted that under Idaho law the boy in such a case could be charged with statutory rape and the girl with fornication ^[3]. He also said he prosecuted boys as vigorously as girls, partly to keep fathers financially responsible for their children and involved in raising them ^[3].

Answering his critics, Varie compared the policy to other limits on minors. Teenagers in Idaho, he argued, already could not buy cigarettes or alcohol or marry without parental consent ^[2]. The sheriff added that the county held itself to "higher standards" than larger cities ^[2].

How did residents and civil liberties groups react?

Reactions in Emmett were divided, and the cases drew criticism well beyond Idaho. Sheriff John told The Seattle Times that most residents supported the prosecutions ^[1]. Emmett's mayor, John LaFordge, questioned how the authorities could even identify who had committed the offense ^[1].

Opposition was visible in the street. Protesters picketed the courthouse, and about 50 demonstrators, many of them young mothers and pregnant girls, attended Smisek's sentencing ^[2][3]. Wendy Brown, managing editor of Emmett's newspaper, the Messenger Index, said the matter belonged to families and that "Big Brother should mind his own business" ^[3]. Smisek argued that if fornication was a crime, adults should be charged too ^[3].

The American Civil Liberties Union was the most prominent critic. Jack Van Valkenburgh, executive director of the ACLU of Idaho, argued that using a law written for everyone against teenagers alone amounted to selective prosecution and denied equal protection ^[2]. Planned Parenthood of Idaho said prosecuting pregnant teenagers did not work and called for comprehensive education and health services instead ^[3].

Inside the school, the effect was unclear. Duane Horning, principal of the Emmett high school, said the publicity had not clearly discouraged students from having sex and that he was revising the sex education course ^[2]. A 15-year-old student, Trina Wade, called it unfair that only Gem County residents faced charges ^[2].

Were the prosecutions legal?

At the time, the prosecutions rested on a statute that was still in force, and no court is reported to have overturned them. Smisek's lawyer raised selective enforcement at trial and lost ^[2], and her family did not appeal ^[1]. The ACLU and Idaho lawyers questioned the cases on privacy and equal-protection grounds ^[3], but no appellate ruling on the Gem County cases appears in the reports reviewed for this article.

The constitutional landscape changed seven years later. On June 26, 2003, in Lawrence v. Texas, the U.S. Supreme Court held, in an opinion joined by five justices (six voted for the judgment), that the Due Process Clause protects private, consensual intimate conduct between adults ^[7]. Justice Antonin Scalia's dissent listed fornication laws among those the ruling called into question ^[7]. The majority set limits, however, stating that the case did not involve minors, public conduct or prostitution ^[7].

That limit matters for Gem County. The 1996 defendants were 16- and 17-year-olds, so Lawrence on its own did not settle whether prosecuting minors in this way would be unconstitutional. What Lawrence did undermine was the statute itself, which on its face punished consensual relations between unmarried adults. The wider consequences are explained in how Lawrence v. Texas undermined fornication laws.

How did Idaho finally repeal the law?

Idaho repealed its fornication law through Senate Bill 1325, which Governor Brad Little signed on March 22, 2022, and which took effect on July 1, 2022 ^[5]. The impetus came from the Idaho Criminal Justice Commission. At an October 25, 2021 meeting, its sexual offenses subcommittee agreed to repeal both the adultery statute, § 18-6601, and the fornication statute, § 18-6603, noting that they criminalized sex outside marriage, conduct it considered protected under Lawrence v. Texas ^[6].

The politics were anticipated. The subcommittee's notes record that some legislators might object to repealing adultery because it could look like an endorsement of it; no similar worry was recorded about fornication ^[6]. The same meeting recommended replacing the old "crime against nature" provision with narrower, specific offenses ^[6].

The bill then moved quickly. The Senate passed it 33 to 0 on February 28, 2022, and the House 65 to 5 on March 17; it became chapter 124 of the 2022 Session Laws ^[5]. Its official description spoke only of revising provisions on "certain sex crimes" ^[5].

The repeal came 26 years after the Gem County cases. The section number that once held the fornication offense now covers a different crime; the details are in our article on how Idaho repealed its fornication and adultery laws. For the states that still keep comparable statutes, see fornication laws still on the books.

Frequently asked questions

Who was Amanda Smisek?

Amanda Smisek was the first person charged in Gem County's 1996 fornication campaign. She was a 17-year-old high-school senior in Emmett, Idaho, and seven months pregnant when she was summoned. She pleaded not guilty, was convicted after a trial in May 1996 and received a suspended sentence with probation.

Why were teenage parents targeted?

Officials said they wanted to curb teen pregnancy and the welfare costs linked to it. Smisek's case began when she applied for pregnancy-related state medical aid and a welfare official alerted the police. The prosecutor denied singling out girls on Medicaid and said he charged boys as vigorously as girls.

How many people were charged in Gem County?

Between about six and ten young people, depending on the source. The Seattle Times reported about half a dozen in July 1996, while a New York Times report in November counted about ten pregnant girls charged along with their boyfriends. The prosecutor declined to give a figure.

Did anyone go to jail for fornication in Gem County?

No jail time was reported. Smisek and her boyfriend received suspended detention or jail terms and three years of probation, with conditions such as parenting classes and finishing high school. Most other defendants pleaded guilty, and their juvenile records were to be sealed at age 18.

What was the penalty for fornication in Idaho?

Up to six months in jail, a fine of up to $300, or both. The court could also suspend the sentence, with or without probation. The offense was a misdemeanor under Idaho Code § 18-6603 until its repeal in 2022.

Is fornication still a crime in Idaho?

No. Senate Bill 1325 repealed the fornication and adultery statutes, with effect from July 1, 2022. A subcommittee of the Idaho Criminal Justice Commission had concluded in 2021 that both laws conflicted with Lawrence v. Texas.

Could a county bring the same charges today?

Not in Idaho, because the fornication statute no longer exists. In the few states that keep similar laws, Lawrence v. Texas makes prosecutions of consenting adults very unlikely to survive. Lawrence expressly left cases involving minors aside, so conduct by teenagers is governed by other statutes, such as age-of-consent laws.