Virginia's Fornication Law, From Martin v. Ziherl to Repeal

What did Virginia's fornication statute say?

Virginia's fornication statute, § 18.2-344 of the Code of Virginia, made voluntary sexual intercourse by an unmarried person a crime. The 2020 repeal bill summarized it in exactly those terms and noted that the offense was a Class 4 misdemeanor ^[2]. Today the official code shows only a heading and the note "Repealed by Acts 2020, c. 122, cl. 2" ^[1].

A Class 4 misdemeanor is the lightest category in Virginia law. It is punishable by a fine of not more than $250, with no jail term ^[3]. The fornication offense therefore never carried the threat of imprisonment, unlike the cohabitation laws of North Carolina or Mississippi. When the repeal bill was debated in 2020, press reports still described the exposure as a $250 fine ^[7].

The statute was broad in another way. It did not require cohabitation or a habitual relationship, as some Southern laws do; on the bill's description, a single act of voluntary intercourse by an unmarried person was enough ^[2]. It sat in Chapter 8 of Title 18.2 alongside a separate cohabitation offense, § 18.2-345, and the adultery offense, § 18.2-365, which survives ^[9][12].

Timeline

1. 2003June 26: in Lawrence v. Texas, the U.S. Supreme Court protects private, consensual intimate conduct between adults.
2. 2005January 14: in Martin v. Ziherl, the Supreme Court of Virginia holds § 18.2-344 unconstitutional as applied to private, consensual sex between unmarried adults.
3. 2013The General Assembly repeals § 18.2-345, the lewd and lascivious cohabitation statute (Acts 2013, c. 621).
4. 2014A repeal bill filed by Delegate Mark Sickles dies in committee.
5. 2018Delegate Mark Levine tries again, without success.
6. 2020House Bill 245 passes the House 91-5 (February 6) and the Senate 39-0 (February 19); Governor Ralph Northam approves it on March 4 as chapter 122.
7. July 1, 2020The repeal of § 18.2-344 takes effect; adultery (§ 18.2-365) remains a Class 4 misdemeanor.

What happened in Martin v. Ziherl?

Martin v. Ziherl was a civil damages suit that turned into a constitutional ruling on the fornication statute. The two parties, both unmarried adults, had a sexual relationship from about October 2001 to November 2003 ^[4]. After Martin was diagnosed with herpes in June 2003, she sued Ziherl in the Circuit Court of the City of Richmond, alleging that he knew he was infected, knew the virus was contagious and did not tell her ^[4]. Her claims were negligence, intentional battery and intentional infliction of emotional distress ^[4].

Ziherl answered with a procedural defense. He invoked an earlier Virginia precedent, Zysk v. Zysk, under which a person who takes part in an illegal act cannot recover damages for injuries arising from it ^[4]. Because the couple's relationship was fornication under § 18.2-344, the argument went, Martin's injuries flowed from her own crime. Richmond Circuit Judge Theodore J. Markow agreed and dismissed the suit ^[5], holding that Lawrence v. Texas had not struck down the Virginia statute ^[4].

The Supreme Court of Virginia took the appeal, with the ACLU of Virginia filing a friend-of-the-court brief ^[5]. On January 14, 2005, in an opinion by Justice Elizabeth B. Lacy (Record No. 040804, reported at 269 Va. 35), the court reversed and sent the case back to Richmond for further proceedings ^[4]. No justice dissented; Chief Justice Hassell added a one-sentence concurrence in the judgment ^[4].

Two procedural points cleared the way for the ruling. The court declined to consider a standing argument that Ziherl raised for the first time on appeal, and it rejected the idea that its answer would be merely advisory: whether the statute was valid decided whether Martin could pursue her claim for damages ^[4]. Her lawyer, Neil Kuchinsky, had argued throughout that the state could not make fornication a crime ^[5].

How did the court apply Lawrence v. Texas?

The court applied Lawrence v. Texas directly, finding no relevant distinction between the Texas sodomy law struck down in 2003 and Virginia's fornication statute. In Lawrence, decided on June 26, 2003, the U.S. Supreme Court ruled 6 to 3 for the petitioners: five justices held that adults have a liberty interest, under the Due Process Clause of the Fourteenth Amendment, in private and consensual intimate conduct, and Justice O'Connor concurred in the judgment on equal-protection grounds ^[6]. Justice Antonin Scalia's dissent had warned that laws against fornication and adultery would be called into question ^[6].

The Virginia court relied on the reasoning Lawrence borrowed from Justice John Paul Stevens's dissent in Bowers v. Hardwick: decisions by unmarried persons about their intimate relationships are a form of protected liberty ^[4]. It reviewed the statute under the rational basis standard and found the state's justifications insufficient, including public health and the encouragement of marriage for procreation ^[4]. It concluded that § 18.2-344 violated the Due Process Clause as applied to private, consensual intercourse between unmarried adults ^[4].

The holding was carefully limited. The court said its decision did not involve minors, non-consensual activity, prostitution or public conduct, and that it left intact the state's power to regulate public fornication and prostitution ^[4]. It kept the Zysk rule itself but held that Zysk no longer applies to private, consensual intercourse, because that conduct is no longer illegal ^[4]. For the federal background, see our page on how Lawrence v. Texas undermined fornication laws.

The ACLU of Virginia's executive director, Kent Willis, summed up the logic in one line: "If banning sodomy violates the right of privacy, then banning fornication does too" ^[5].

Why did the law stay in the code after 2005?

The law stayed in the code because a court ruling does not delete a statute; only the General Assembly can repeal it. After Martin, § 18.2-344 could not be applied to private, consensual conduct between adults, but its text remained in the Code of Virginia for fifteen more years ^[1][4]. A dead letter of this kind can still be cited, charged or used as leverage.

Delegate Mark Levine, who sponsored the eventual repeal, said in 2020 that prosecutors had still charged fornication as recently as about five years earlier, sometimes to add counts in sex-crime cases, and that it had occasionally been used in plea deals ^[7]. Civil courts also kept citing it. A 2014 article in Virginia Lawyer noted that § 18.2-344 and the cohabitation statute had been invoked together as evidence of Virginia public policy in an employment case ^[11].

Repeal efforts repeatedly stalled. Delegate Mark Sickles filed a bill in 2014 that died in committee, and Levine tried in 2018 without success ^[7]. Levine argued that the statute bred distrust of the law: "We should not have laws that make most of the population into criminals" ^[7].

The sodomy statute had followed a similar path. In 2004, the General Assembly agreed to repeal it for private settings but could not agree on a penalty for public conduct, so the original law remained in place, according to the ACLU ^[5].

How did the 2020 repeal pass?

The 2020 repeal passed by near-unanimous votes in both chambers. House Bill 245, titled "Fornication; repeal," was prefiled on December 30, 2019, and Delegate Mark Levine introduced it ^[2][7]. A Courts of Justice subcommittee recommended it 7 to 1 on January 29, 2020, and the full committee reported it 18 to 0 two days later ^[2].

The House of Delegates passed the bill 91 to 5 on February 6, 2020 ^[2]. In the Senate, the Judiciary Committee reported it 15 to 0 on February 17, and the full Senate passed it 39 to 0 on February 19 ^[2]. Governor Ralph Northam approved it on March 4, 2020, as chapter 122 of the Acts of Assembly, and the repeal took effect on July 1, 2020 ^[2][8].

The vote came in a session in which the Democrat-controlled General Assembly reviewed a series of old laws ^[8]. The repeal changed nothing in practice for consenting adults, who had been protected since Martin, but it removed a statute that could still be charged in other contexts. Idaho followed a similar housekeeping logic two years later; see how Idaho repealed its fornication and adultery laws.

Which other old Virginia laws were repealed?

Virginia repealed its cohabitation law in 2013 and two other old provisions in the same 2020 session. The official code shows § 18.2-345, the lewd and lascivious cohabitation statute, as "Repealed by Acts 2013, c. 621" ^[9]. In January 2013, NPR reported that a state Senate committee had approved the repeal of the ban on unmarried couples living together, in place since the 1870s; supporters of repeal said it had not been enforced in a long time ^[10].

The 2013 repeal mattered more in family courts than in criminal courts. Writing in Virginia Lawyer in February 2014, Afshin Farashahi argued that the end of § 18.2-345 would have its main impact outside criminal law, in child custody cases ^[11].

In 2020, alongside the fornication repeal, the governor signed House Bill 1071, which repealed the offense of profane swearing in public, another Class 4 misdemeanor with a fine of up to $250 ^[8]. He also signed House Bill 923, which removed the procedure allowing courts to declare a person a "habitual drunkard," after a federal appeals court had found the scheme unconstitutional the previous year ^[8].

Is adultery still a crime in Virginia?

Yes. Section 18.2-365 still provides that a married person who voluntarily has sexual intercourse with someone other than his or her spouse is guilty of adultery, a Class 4 misdemeanor ^[12]. The official code, consulted on October 23, 2026, shows the section in force, with a history note citing the Code of 1950 and acts of 1960 and 1975 ^[12].

The adultery statute is outside the holding of Martin v. Ziherl, which concerned two unmarried adults ^[4]. Whether Lawrence also protects adulterous relationships, which involve a spouse outside the relationship, has not been decided in any published Virginia appellate ruling found for this article. As a Class 4 misdemeanor, adultery is punishable only by a fine of up to $250 ^[3].

Virginia's current position is therefore mixed. Since July 1, 2020, consensual sex between unmarried adults is no longer an offense, and since 2013 cohabitation is not either. Adultery, by contrast, remains a crime on paper, though one that carries no jail term.

Frequently asked questions

Is fornication illegal in Virginia?

No. The Supreme Court of Virginia held the fornication statute unconstitutional for private, consensual conduct between unmarried adults in Martin v. Ziherl on January 14, 2005. The General Assembly then repealed § 18.2-344 through House Bill 245, effective July 1, 2020.

What was the penalty for fornication in Virginia?

Fornication was a Class 4 misdemeanor. In Virginia, that category is punishable by a fine of not more than $250 and carries no jail term.

Who sponsored the repeal?

Delegate Mark Levine introduced House Bill 245 in the 2020 session. Earlier attempts by Delegate Mark Sickles in 2014 and by Levine in 2018 had failed.

When did the repeal take effect?

On July 1, 2020. Governor Ralph Northam approved House Bill 245 on March 4, 2020, as chapter 122 of the Acts of Assembly, after votes of 91 to 5 in the House and 39 to 0 in the Senate.

Is adultery still a crime in Virginia?

Yes, on paper. Section 18.2-365 still makes adultery by a married person a Class 4 misdemeanor, punishable by a fine of up to $250. Martin v. Ziherl did not address adultery, and prosecutions are rare.

Is it illegal for unmarried couples to live together in Virginia?

No. The lewd and lascivious cohabitation statute, § 18.2-345, was repealed by Acts 2013, chapter 621. Since the 2020 repeal of the fornication statute, neither living together nor sex between unmarried adults is a crime in Virginia.

Why did a herpes lawsuit decide the fate of the law?

Because the defendant argued that the plaintiff could not recover damages for an injury suffered while committing a crime, fornication. To let the suit go forward, the Supreme Court of Virginia had to decide whether the fornication statute was valid, and it held that it was not. The case was then sent back to the Richmond circuit court.