Wednesday, December 21, 2011

Fornication and criminal adultery!

If you're a single guy, or a single woman, and you have sex with each other, what is that?

Criminal fornication; it's a misdemeanor.

What if the guy is married (to somebody else) and the woman is single? Same result under the statue, Minn. Stat. sec. 609.34.

Okay, what if the man and the women are each married, but not to each other? Well, that's entirely different! That's criminal adultery, and each can be imprisoned for up to a year and fined up to $3,000, or both (kind of misdemeanor-like).

Under the criminal adultery statute, Minn. Stat. sec. 609.36, it doesn't actually matter whether the man is married or not, just as in the case for simple fornication.

To summarize, if you are an unmarried woman and have sex with any man, married or not, it's fornication. If you are a married woman, and you have sex with any man, married to somebody else or not, that's criminal adultery.

However, in the case of criminal adultery, the man can defend on the grounds that he didn't know that the woman was married. The state of the woman's knowledge is irrelevant, because, after all, she was married.

Presumably, however, even if the man thought the woman was unmarried, and he skated on criminal adultery, he would still be guilty of fornication. Right?

Franz Kafka, the nation turns its lonely eyes to you.

An interesting wrinkle on these two statutes is that only the wronged spouse can swear out a complaint for criminal adultery, kind of like it was theft of property. Fornication -- being a crime against female virginity -- is not so limited; any busy body with knowledge of fornication can bring it to the attention of law enforcement.

But I've saved the very best part for last. Consentual homosexual acts may still violate the sodomy law in Minnesota, but the sodomy law is unenforceable under the United States Supreme Court decision in Lawrence v. Texas.

If a cohabiting man and woman -- who presumably wracked up multiple counts of fornication or adultery -- were charged, could they defend on the grounds that they were denied equal protection compared to a gay couple?

You know what we need? We need a test case. Any idea where we can get one?

One of the best parts of the entire low-comedy L'affaire Brodkorb is that DFL Senator Ellen Anderson wanted to get rid of criminal fornication and adultery a few years ago. But Tom Pritchard and the Minnesota Family Council was agin' it.

Update: If gays could marry, it would open up a new vista of finger-pointing outrage for MFC. It may wish to think about the expanded jurisdiction possibilities.

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