Martin v. Ziherl
Encyclopedia
Martin v. Ziherl, 607 S.E.2d
367 (Va. 2005), was a decision by the Supreme Court of Virginia
holding that the Virginia
criminal law against fornication
was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v. Texas
, which established the constitutionally-protected right of adults to engage in private, consensual sex.
against Ziherl in the Richmond
Circuit Court, alleging that he knew he was infected with herpes when they had unprotected sex, knew it was contagious, and failed to inform her. Her complaint
claimed negligence
, intentional battery
and intentional infliction of emotional distress
, for which she sought compensatory and punitive damages.
The Supreme Court of Virginia had ruled in Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), that plaintiff
s could not recover damages for injuries suffered while participating in illegal conduct. As sex between unmarried persons was criminalized under Virginia's anti-fornication statute, Ziherl filed a demurrer
in response to Martin's suit. Judge Theodore J. Markow rejected Martin's argument that the statute was no longer valid after Lawrence v. Texas, in which the U.S. Supreme Court struck a Texas
law criminalizing homosexual sodomy
as an infringement upon the liberty of adults to engage in private and consensual intimate conduct under the due process
clause of the Fourteenth Amendment to the United States Constitution
. Judge Markow instead believed the fornication prohibition satisfied the rational basis review
that Lawrence ruled the Texas statute failed, because the fornication law was reasonably related to the legitimate government goals of protecting public health and encouraging marriage for procreation. Ziherl's demurrer was sustained, resulting in the dismissal of Martin's suit. She subsequently appealed to the Virginia Supreme Court.
On appeal, Ziherl argued that Martin lacked standing
to challenge the constitutionality of the statute because she was under no threat of prosecution, and so invalidation would not impact her liberty but would only allow her to pursue her lawsuit against him. The court refused to consider this argument, however, because of the longstanding rule that it would not consider a standing argument that was not first made at the trial court level.
. Because the conduct by which Martin was allegedly injured could not be considered illegal, Zysk did not apply and she could proceed with her suit against Ziherl in the Richmond Circuit Court.
Lawrence v. Texas was the sole foundation for the court's ruling, and so the majority of its opinion was an interpretation of that decision. The U.S. Supreme Court in Lawrence had stated that it was adopting the reasoning of Justice
John Paul Stevens
in his dissent to Bowers v. Hardwick
, which Lawrence overruled. The Stevens rationale, as the Virginia Supreme Court presented it, was that "decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationships that are entitled to due process protection." The Virginia Supreme Court stated that sexual intercourse
was clearly part of the personal relationship of an unmarried couple, and that criminalizing intercourse clearly infringed upon their constitutionally protected right to make intimate choices.
Regarding Ziherl's argument that the statute served valid public interests, the court stated that in Lawrence, the U.S. Supreme Court had ruled that the Texas sodomy statute furthered "no legitimate state interest" that could justify infringing the right to intimate contact. The Virginia Supreme Court interpreted this to mean that all state interests must be insufficient to justify a prohibition on private, consensual sexual conduct, rather than only those advanced by Texas to support its statute in Lawrence. The court was careful to note that this did not pertain to laws involving minors, non-consensual or public sexual activity, or prostitution
, all of which the Lawrence Court also distinguished.
South Eastern Reporter
The South Eastern Reporter and South Eastern Reporter Second are United States regional case law reporters. It is part of the National Reporter System created by John B...
367 (Va. 2005), was a decision by the Supreme Court of Virginia
Supreme Court of Virginia
The Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of...
holding that the Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
criminal law against fornication
Fornication
Fornication typically refers to consensual sexual intercourse between two people not married to each other. For many people, the term carries a moral or religious association, but the significance of sexual acts to which the term is applied varies between religions, societies and cultures. The...
was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
, which established the constitutionally-protected right of adults to engage in private, consensual sex.
Background of the case
Muguet Martin and Kristopher Ziherl were an unmarried couple who had been in a sexually active relationship for two years when Martin's doctor diagnosed her with herpes. She then filed a lawsuitLawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
against Ziherl in the Richmond
Richmond, Virginia
Richmond is the capital of the Commonwealth of Virginia, in the United States. It is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
Circuit Court, alleging that he knew he was infected with herpes when they had unprotected sex, knew it was contagious, and failed to inform her. Her complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
claimed negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, intentional battery
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
and intentional infliction of emotional distress
Intentional infliction of emotional distress
Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...
, for which she sought compensatory and punitive damages.
The Supreme Court of Virginia had ruled in Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), that plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s could not recover damages for injuries suffered while participating in illegal conduct. As sex between unmarried persons was criminalized under Virginia's anti-fornication statute, Ziherl filed a demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
in response to Martin's suit. Judge Theodore J. Markow rejected Martin's argument that the statute was no longer valid after Lawrence v. Texas, in which the U.S. Supreme Court struck a Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
law criminalizing homosexual sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
as an infringement upon the liberty of adults to engage in private and consensual intimate conduct under the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. Judge Markow instead believed the fornication prohibition satisfied the rational basis review
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
that Lawrence ruled the Texas statute failed, because the fornication law was reasonably related to the legitimate government goals of protecting public health and encouraging marriage for procreation. Ziherl's demurrer was sustained, resulting in the dismissal of Martin's suit. She subsequently appealed to the Virginia Supreme Court.
On appeal, Ziherl argued that Martin lacked standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to challenge the constitutionality of the statute because she was under no threat of prosecution, and so invalidation would not impact her liberty but would only allow her to pursue her lawsuit against him. The court refused to consider this argument, however, because of the longstanding rule that it would not consider a standing argument that was not first made at the trial court level.
The court's decision
The Virginia Supreme Court unanimously ruled on January 14, 2005, that the Virginia fornication law violated the Fourteenth AmendmentFourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. Because the conduct by which Martin was allegedly injured could not be considered illegal, Zysk did not apply and she could proceed with her suit against Ziherl in the Richmond Circuit Court.
Lawrence v. Texas was the sole foundation for the court's ruling, and so the majority of its opinion was an interpretation of that decision. The U.S. Supreme Court in Lawrence had stated that it was adopting the reasoning of Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
in his dissent to Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
, which Lawrence overruled. The Stevens rationale, as the Virginia Supreme Court presented it, was that "decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationships that are entitled to due process protection." The Virginia Supreme Court stated that sexual intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
was clearly part of the personal relationship of an unmarried couple, and that criminalizing intercourse clearly infringed upon their constitutionally protected right to make intimate choices.
Regarding Ziherl's argument that the statute served valid public interests, the court stated that in Lawrence, the U.S. Supreme Court had ruled that the Texas sodomy statute furthered "no legitimate state interest" that could justify infringing the right to intimate contact. The Virginia Supreme Court interpreted this to mean that all state interests must be insufficient to justify a prohibition on private, consensual sexual conduct, rather than only those advanced by Texas to support its statute in Lawrence. The court was careful to note that this did not pertain to laws involving minors, non-consensual or public sexual activity, or prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
, all of which the Lawrence Court also distinguished.
See also
- Sex-related court cases in the United StatesSex-related court cases in the United StatesThe United States Supreme Court and various U.S. state courts have decided several cases regarding pornography, sexual activity, and reproductive rights. The trend has been one of courts striking down states' attempts to regulate sex....
- judicial reviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
- substantive due process