The state Supreme Court yesterday struck down as unconstitutional a 19th-century Virginia law making it a crime for unmarried couples to have sex.
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The ruling strikes down a law criminalizing fornication as a Class 4 misdemeanor punishable by a fine of up to $250. The law had been on the books since the early 1800s but has not been enforced against consenting adults since 1847, lawyers said. The court based yesterday's ruling on a 2003 U.S. Supreme Court decision overturning an anti-sodomy law in Texas.

The opinion did not deal with a separate Virginia law prohibiting sodomy. But attorneys for both parties in the case said it suggested that the court considers most laws regulating sex between consenting adults to be unconstitutional violations of the 14th Amendment's right to due process.
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The case involved a woman who sued her former boyfriend. Muguet S. Martin of Dinwiddie asked for $5 million in damages from Ziherl when she learned she had contracted herpes after they had had unprotected sex. She alleged that Ziherl knew about his condition but failed to inform Martin.

Circuit Court Judge Theodore J. Markow in Richmond dismissed the lawsuit, concluding that Martin was not entitled to sue for damages that occurred during an illegal act. The state Supreme Court ruling reinstates the lawsuit, which will proceed in Circuit Court.