How Idaho Repealed Its Fornication and Adultery Laws in 2022

What did Idaho's fornication law say?

Idaho's fornication law made it a crime for an unmarried person to have sexual intercourse with an unmarried person of the opposite sex. In the 2021 edition of the Idaho Code, the last before repeal, § 18-6603 was headed simply "Fornication" and declared such a person guilty of the offense ^[5]. The penalty was a fine of up to $300, up to six months of imprisonment, or both, and the court could suspend all or part of the sentence, with or without probation ^[5].

The statute's history note dates the section to 1972, chapter 336 ^[5]. That was its re-enactment in the modern criminal code, not its origin. Press coverage in 1996 described the underlying fornication law as dating from 1921 ^[8], which would make it about a century old at the time of repeal.

The neighboring adultery statute, § 18-6601, was broader and harsher. It covered a married man who had intercourse with a woman not his wife, a married woman in the reverse situation, and an unmarried person who had intercourse with a married partner ^[6]. It carried a minimum fine of $100, with imprisonment available as an alternative ^[6]. Unlike some Southern laws, neither Idaho statute required cohabitation: a single act was enough on the wording.

Timeline

1. 1921Idaho enacts the fornication law later used in Gem County, according to 1996 press reports.
2. 1972The offense is re-enacted as Idaho Code § 18-6603 (1972, ch. 336): fine up to $300, up to six months, or both.
3. 1996Gem County officials charge about six people, mostly teenagers, with fornication.
4. 2003June 26: Lawrence v. Texas protects private, consensual intimate conduct between adults.
5. 2021October 25: the Idaho Criminal Justice Commission's sexual offenses subcommittee agrees to repeal the adultery and fornication statutes.
6. 2022Senate Bill 1325 passes the Senate 33-0 (February 28) and the House 65-5 (March 17); Governor Brad Little signs it on March 22.
7. July 1, 2022The repeal takes effect; § 18-6603 becomes the new offense of sexual abuse of human remains.

Was the fornication law ever enforced?

Yes, at least once in a sustained way, in Gem County in 1996. The county prosecutor, Doug Varie, and Sheriff Mark John revived the law to discourage teenage sex, citing a rise in young unwed mothers receiving welfare ^[8]. The Seattle Times reported in July 1996 that about six people had been charged in the county, whose seat, Emmett, then had about 4,600 residents ^[8].

The first case started with a request for public assistance. A pregnant 17-year-old high-school senior applied for pregnancy-related state medical aid; a welfare official alerted the Emmett police, who referred the case to the prosecutor ^[8]. After a trial in May 1996 she was convicted and received a suspended sentence, with orders to finish high school and attend parenting classes ^[8]. Her 16-year-old boyfriend pleaded guilty and received three years of probation, 40 hours of community service and a $10 fine ^[8]. She told the newspaper she had not known what "fornication" meant until she looked it up, and argued that she was being singled out, since other pregnant girls she knew had not been charged ^[8].

The officials' stated motive was public health and welfare costs. The newspaper put the county's pregnancy rate at about 80 per 1,000, among the highest in Idaho although roughly three-quarters of the national average ^[8]. The mayor of Emmett publicly questioned how the authorities could even identify who had fornicated ^[8].

The prosecutions drew sharp criticism. The teenager's public defender said the county was hauling a minor into court for having sex, and an ACLU representative in Boise called the policy "the worst kind of Big Brother run amok" ^[8]. The sheriff answered that most residents supported the law ^[8]. Our history page on the Gem County fornication cases tells that story in more detail.

Why did Idaho lawmakers repeal it?

Idaho lawmakers repealed the fornication law because the state's own criminal justice experts concluded it could no longer be enforced under the U.S. Constitution. The review came from the Idaho Criminal Justice Commission, whose sexual offenses subcommittee met on October 25, 2021 ^[4]. Its opinion notes said the adultery and fornication statutes criminalized sex outside marriage, conduct protected under Lawrence v. Texas, and concluded that both should be repealed ^[4].

Lawrence, decided on June 26, 2003 by a 6-to-3 vote, held (in the opinion of five justices) that adults have a liberty interest under the Due Process Clause in private and consensual intimate conduct, while Justice O'Connor concurred in the judgment on equal-protection grounds ^[9]. The majority did not mention fornication, but Justice Antonin Scalia's dissent listed fornication and adultery laws among those the decision would call into question ^[9]. The Idaho subcommittee drew the conclusion Scalia had predicted. The Gem County cases, which involved minors, would still fall outside Lawrence's core holding, since the Supreme Court expressly said its case did not involve minors ^[9]; but the statute itself reached consensual relations between unmarried adults, which is what made it unenforceable as written.

The same meeting dealt with the crime against nature. Some prosecutors wanted to keep a catch-all provision for very rare cases, but the group agreed to repeal the existing language and to write specific offenses for bestiality and necrophilia instead ^[4].

The minutes also record the politics. Ada County, the state's most populous county, had no objection, but members anticipated that some legislators might resist because repeal could look like an endorsement of adultery ^[4]. The statement of purpose filed with the bill avoided constitutional language and described the adultery and fornication offenses as "unenforceable" ^[3].

How did Senate Bill 1325 pass?

Senate Bill 1325 passed both chambers by wide margins in about five weeks. The Senate Judiciary and Rules Committee introduced it on February 14, 2022, and reported it with a "do pass" recommendation on February 23 ^[1]. The full Senate approved it 33 to 0 on February 28, with two members absent, and Senator Lakey as floor sponsor ^[1].

The House Judiciary, Rules and Administration Committee recommended passage on March 15, and the House approved the bill 65 to 5 on March 17, with Representative Chaney as floor sponsor ^[1]. The five votes against came from Representatives Adams, Crane, Okuniewicz, Wisniewski and Young ^[1]. Governor Brad Little signed the bill on March 22, 2022, the day it reached his desk ^[1].

The act became chapter 124 of the 2022 Session Laws and took effect on July 1, 2022 ^[1]. Its fiscal note projected no fiscal impact on state or local government ^[3]. The bill grew out of the Criminal Justice Commission's review, and its statement of purpose listed the commission's chair, Eric Fredericksen, and the subcommittee chair, Ashley Dowell, as contacts ^[3].

What else did Senate Bill 1325 change?

Senate Bill 1325 rewrote much of Chapter 66 of Title 18, the sex crimes chapter of the Idaho Code ^[2]. Besides the adultery and fornication sections, it repealed §§ 18-6605 and 18-6606, the "infamous crime against nature" provisions ^[2]. The commission's subcommittee had called that language "outdated, vague, and ambiguous" and found it unconstitutional as written because it reached consensual adult conduct ^[4].

To fill the gap, the bill created two specific felonies. A new § 18-6602 punishes sexual abuse of an animal, and a new § 18-6603 punishes sexual abuse of human remains, each with up to five years in prison ^[2]. The statement of purpose explained that these covered conduct the old crime-against-nature statute had clearly prohibited ^[3].

The bill also modernized the incest statute, with a gender-neutral definition of sexual intercourse, and amended the forcible penetration offense to cover a person who forces someone to penetrate a third party ^[2][3]. The remaining sections updated cross-references across the code, including the sex offender registry and the civil-rights provision of § 18-310, and deleted references to the crime against nature ^[2].

What does Idaho Code 18-6603 cover today?

Today Idaho Code § 18-6603 is titled "Sexual abuse of human remains," not "Fornication" ^[7]. It makes sexual contact with a deceased human body, or any part of one, a felony punishable by up to five years in state prison ^[7]. It exempts accepted medical, dental and nursing practice, organ donation, mortuary practice such as embalming, and investigative work by coroners, medical examiners and pathologists ^[7].

Its history note reads "added 2022, ch. 124, sec. 7," which confirms that the number was reassigned by Senate Bill 1325 ^[7]. Anyone reading an older article, court file or list of "weird laws" that cites § 18-6603 as Idaho's fornication statute is therefore looking at a citation that no longer exists in that form. The adultery number, § 18-6601, was repealed outright ^[2].

Which states still have similar laws?

A handful of states still keep fornication or cohabitation offenses in their codes, mostly in the South. North Carolina's G.S. 14-184 still makes it a Class 2 misdemeanor for a man and woman not married to each other to bed and cohabit together ^[11]. South Carolina's § 16-15-60 still punishes adultery and fornication, defined as cohabitation or habitual intercourse ^[12]. Mississippi's § 97-29-1 still punishes unlawful cohabitation in adultery or fornication ^[13].

Other states have moved in Idaho's direction. Massachusetts repealed its fornication law in 2018 and Utah in 2019 ^[14]. Virginia repealed its statute by Acts 2020, chapter 122 ^[10], fifteen years after its Supreme Court held it unconstitutional; see our page on Virginia's road from Martin v. Ziherl to repeal. In February 2020, a CNN report on remaining laws still listed Idaho's fornication penalty of up to $300 and six months ^[14], a reminder of how recently the statute left the books. Idaho also went further than Virginia on adultery: Virginia still lists adultery as a Class 4 misdemeanor under § 18.2-365 ^[15], while Idaho removed its adultery offense entirely ^[2].

Idaho's repeal was notable for its breadth. It removed fornication and adultery in the same act and replaced the crime against nature with narrower offenses, rather than leaving dead letters in place. For a state-by-state list, see our overview of fornication laws still on the books.

Frequently asked questions

Is fornication still illegal in Idaho?

No. Senate Bill 1325 repealed Idaho Code § 18-6603, the fornication statute, with effect from July 1, 2022. Consensual sex between unmarried adults is no longer a crime under Idaho law.

When did Idaho repeal its fornication law?

In 2022. Governor Brad Little signed Senate Bill 1325 on March 22, 2022, after votes of 33 to 0 in the Senate and 65 to 5 in the House. The repeal took effect on July 1, 2022, as chapter 124 of the 2022 Session Laws.

Is adultery still a crime in Idaho?

No. The same bill repealed § 18-6601, the adultery statute, which had covered both married people and their unmarried partners. The Idaho Criminal Justice Commission's subcommittee had concluded in 2021 that both laws conflicted with Lawrence v. Texas.

What is Idaho Code 18-6603 today?

It is the crime of sexual abuse of human remains. Senate Bill 1325 reused the number for that new felony, punishable by up to five years in prison. Older references to § 18-6603 as the fornication statute are out of date.

Who proposed the repeal?

The Idaho Criminal Justice Commission. Its sexual offenses subcommittee recommended repeal at an October 25, 2021 meeting, and the Senate Judiciary and Rules Committee introduced the bill on February 14, 2022. The statement of purpose listed the commission's chair and subcommittee chair as contacts.

Did Idaho ever prosecute anyone for fornication?

Yes. In 1996, Gem County officials charged about six people under the fornication law, mostly teenagers, in a campaign against teen pregnancy. One 17-year-old was convicted at trial and given a suspended sentence with conditions, and her 16-year-old boyfriend pleaded guilty.

Did the repeal create any new crimes?

Yes, two. Senate Bill 1325 created the felonies of sexual abuse of an animal (§ 18-6602) and sexual abuse of human remains (§ 18-6603), each punishable by up to five years. They replaced parts of the repealed crime-against-nature statute.