Utah's 1973 Fornication Law and Its 2019 Repeal

What did Utah Code 76-7-104 say?

Utah Code § 76-7-104 made it a crime for any unmarried person to have consensual sexual intercourse with another person. Its first subsection provided that "any unmarried person who shall voluntarily engage in sexual intercourse with another" was guilty of fornication, and its second classified the offense as a class B misdemeanor ^[1]. The official code now marks the section "repealed as of 5/14/2019" ^[1].

The wording was broad and gender-neutral, since it spoke simply of intercourse "with another" ^[1]. Unlike the cohabitation statutes of some Southern states, it did not require the couple to live together or to have a habitual relationship: a single voluntary act was enough. It also did not depend on the marital status of the partner, since it targeted the unmarried person; a married participant fell instead under the adultery statute, section 76-7-103, which sat next to it in the same chapter ^[7].

A class B misdemeanor is a minor offense in Utah's scale of crimes. NPR reported that it carried a possible penalty of up to six months in jail or a fine of up to $1,000 ^[2]. That made Utah one of the few states that still kept a fornication law in force on paper in the late 2010s ^[2].

The two 2019 Utah bills that ended the state's sex-outside-marriage offenses

Bill	What it removed	Sponsor / floor sponsor	Final votes	Signed	In force
H.B. 40, Amendments to Criminal Provisions	Adultery (§ 76-7-103) and the offense of consensual sodomy (§ 76-5-403)	Rep. Paul Ray / Sen. Karen Mayne	House 74-0-1 (Jan. 29); Senate 25-2-2 (Feb. 22)	March 25, 2019	May 14, 2019
S.B. 43, Criminal Provisions Modifications	Fornication (§ 76-7-104)	Sen. Karen Mayne / Rep. Paul Ray	Senate 24-4-1 (Feb. 21); House 41-32-2 (March 6)	March 27, 2019	May 14, 2019

How old was the law, and was it enforced?

The statute dated from 1973, according to national reporting on its repeal ^[2]. It sat in chapter 7 of Title 76, next to the adultery section, among the misdemeanors that a Fox 13 report described in 2019 as "offenses against the family" ^[8]. The official code page does not print a legislative history for the section, so its exact chapter in the 1973 session laws is not shown there ^[1].

Enforcement was rare. NPR, citing a Utah policy website, reported that the law had not been prosecuted for years ^[2]. Yet it was not entirely forgotten. A 1991 Deseret News report, quoted by NPR, described an unmarried woman who said she had a "real concrete fear of criminal prosecution" and who stated in a lawsuit that another person in Salt Lake County had been prosecuted for such conduct the year before ^[2].

The neighboring adultery statute shows how these laws could still surface. In 2018, Fox 13 found arrests for adultery dating back to the early 20th century and as recent as the previous year, although prosecutors did not file adultery as a criminal charge in those cases ^[9]. Adultery, like fornication, was a class B misdemeanor punishable by up to six months in jail and a fine ^[9]. The text of House Bill 40 shows that the adultery section had last been amended in 1991 ^[7].

How did Senate Bill 43 get through the legislature?

Senate Bill 43 got through the legislature as part of a criminal code clean-up, but it met real resistance in the House. Its official title was "Criminal Provisions Modifications," and its sponsor was Senator Karen Mayne, then the Senate minority leader, with Representative Paul Ray as floor sponsor in the House ^[2][3]. Introduced on January 28, 2019, it reached its final form as a second substitute and touched several unrelated sections of the code as well as section 76-7-104 ^[3].

After approving the second substitute on second reading by 25 votes to 0 on February 19, the Senate passed the bill on February 21, 2019, by 24 votes to 4, with one member absent ^[3]. In the House, a committee recommended it 8 to 0 on March 1, and the full House passed the bill on March 6 by 41 votes to 32, with two absent ^[3]. Fox 13 later contrasted that narrow House vote with the easy passage of the adultery and sodomy repeal ^[8].

Opponents argued from morality rather than enforceability. Representative Keven Stratton of Orem told colleagues that what is legal is "often far below what is morally right," and Representative Merrill Nelson also objected ^[4][5]. Ray, a Republican from Clearfield, answered that court rulings had made such laws unenforceable and that it was time to take them off the books ^[4][5].

Mayne described the measure in modest terms. She said the fornication section was a small piece of the code that needed updating, and that the aim was to make the laws "modern-day, in the now" ^[2]. Governor Gary Herbert signed the bill on March 27, 2019, and it took effect on May 14, 2019, as chapter 420 of the 2019 Laws of Utah ^[3].

What did House Bill 40 change for adultery and sodomy?

House Bill 40 repealed Utah's adultery statute outright and removed consensual sodomy between adults from the criminal code. Titled "Amendments to Criminal Provisions," it was sponsored by Representative Paul Ray, with Senator Karen Mayne as floor sponsor, the mirror image of the fornication bill ^[6]. Its highlighted provisions stated plainly that it "repeals the criminal offenses of adultery and sodomy" ^[7].

The mechanics were slightly different for each offense. Section 76-7-103, headed "Adultery," was repealed as a whole ^[7]. Section 76-5-403 was amended instead: the stand-alone misdemeanor of sodomy disappeared, while forcible sodomy, committed without the other person's consent, remained a first-degree felony ^[7]. The bill also granted immunity from prosecution for prostitution and sexual solicitation in certain circumstances ^[7], which Fox 13 described as protection for people who report serious crimes such as murder, kidnapping or trafficking ^[9].

House Bill 40 passed easily. The House approved it 74 to 0 on January 29, 2019, and the Senate 25 to 2 on February 22 ^[6]. Governor Herbert signed it on March 25, 2019, without comment, and it took effect on May 14, 2019, as chapter 189 ^[6][8]. A bill repealing the adultery and sodomy offenses had been advanced unanimously by the legislature's Criminal Code Task Force in October 2018 ^[9].

Why did lawmakers call these laws unenforceable?

Lawmakers called these laws unenforceable because of Lawrence v. Texas, the 2003 Supreme Court decision protecting private, consensual intimate conduct between adults. In October 2018, Ray told Fox 13 that the adultery and sodomy laws "have been found unconstitutional by the Supreme Court" ^[9]. The court did not rule on Utah's statutes by name, but its reasoning reached them.

Lawrence was decided on June 26, 2003, by six votes to three on the judgment (five justices joined the majority opinion), and expressly overruled Bowers v. Hardwick (1986) ^[10]. Justice Antonin Scalia's dissent listed fornication and adultery among the morals laws that the decision called into question ^[10]. The majority set limits: the case did not involve minors, people who might be coerced, public conduct or prostitution ^[10]. Those limits are consistent with Utah's choice to repeal the consensual offenses while keeping forcible sodomy a felony.

Repeal had been tried before. Fox 13 reported that a 2007 bill by then-Senator Scott McCoy to repeal the adultery and sodomy laws had failed ^[9]. In 2019, by contrast, the proposals came out of the legislature's criminal code review and were presented as a clean-up ^[8][9]. The case law behind that consensus is explained in how Lawrence v. Texas undermined fornication laws.

What did the repeal change in practice?

In practice the repeal changed little for daily life, because the fornication law was not being prosecuted, but it removed a legal risk and a symbolic statement from the code. Sex between consenting unmarried adults is no longer a crime in Utah, and the section that said otherwise has been repealed since May 14, 2019 ^[1]. Adultery and consensual sodomy between adults ceased to be crimes on the same date ^[6][7]. The repeal ended a statute that had stood for about 46 years, almost sixteen years after Lawrence v. Texas and twelve years after the failed 2007 attempt to remove the adultery and sodomy offenses ^[2][9][10].

The change did not reach conduct outside Lawrence's protection. Forcible sodomy remains a felony, and offenses involving minors or lack of consent are governed by other sections of the code ^[7]. Senate Bill 43 also amended several unrelated provisions, a reminder that the fornication repeal traveled inside a broader technical bill ^[3].

Nor did the repeal touch religious teaching. Churches remain free to set their own standards for members; one example is described in our article on the Latter-day Saint law of chastity. The House debate showed that some lawmakers still saw a moral question at stake, even in a vote about a statute that was no longer prosecuted ^[2][4].

How does Utah compare with other states?

Utah's repeal came less than a year after Massachusetts'. Massachusetts repealed its fornication and adultery sections through chapter 155 of the Acts of 2018, approved on July 25, 2018 ^[11]. Idaho followed with Senate Bill 1325, which repealed its fornication and adultery laws and took effect on July 1, 2022 ^[12].

Utah's approach stands out for splitting the job into two bills. Adultery and sodomy went through House Bill 40 with near-unanimous support, while fornication went through Senate Bill 43 and passed the House by only nine votes ^[3][6]. Both repeals rested on the same constitutional reasoning, yet the fornication bill drew far more opposition in the House, where 32 members voted to keep the offense.

Several states, mostly in the South, still keep fornication or cohabitation offenses in their codes, although Lawrence makes them very difficult to enforce against consenting adults. The current list, with penalties, is set out in fornication laws still on the books.

Frequently asked questions

What was the penalty for fornication in Utah?

Fornication was a class B misdemeanor under Utah Code § 76-7-104. NPR reported that this meant up to six months in jail or a fine of up to $1,000. The law had not been prosecuted for years before its repeal.

Is adultery still illegal in Utah?

No. House Bill 40 repealed Utah's adultery statute, § 76-7-103, with effect from May 14, 2019. The same bill removed consensual sodomy between adults from the criminal code, while keeping forcible sodomy a felony.

Who sponsored the repeal?

Senator Karen Mayne, then the Senate minority leader, sponsored Senate Bill 43, which repealed the fornication law. Representative Paul Ray carried it in the House. The roles were reversed for House Bill 40, the adultery and sodomy repeal.

When did the repeal take effect?

On May 14, 2019. Governor Gary Herbert signed Senate Bill 43 on March 27, 2019, and House Bill 40 on March 25, 2019. Both became effective on the same date.

Why did some lawmakers vote against the repeal?

Some House members objected on moral grounds. Representative Keven Stratton argued that legal standards often fall far below moral ones, and Representative Merrill Nelson also opposed the bill. The House still passed it 41 to 32.

Was anyone prosecuted under Utah's fornication law?

Prosecutions were rare and none recent is documented. NPR reported that the law had not been prosecuted for years. A 1991 Deseret News report cited a lawsuit claiming that a person in Salt Lake County had been prosecuted the previous year.

Did the repeal change religious rules on sex outside marriage?

No. The repeal removed only a criminal penalty. Religious standards, such as the Latter-day Saint law of chastity, are set by churches and were not affected by the change in state law.