Ruling Protects Consensual Sex Sexual Misconduct Convictions Overturned; Married Couple’s Consensual Sex Can’t Be Regulated

The Idaho Court of Appeals has overturned two sexual misconduct convictions against a Kootenai County man, saying the state has no right to regulate private, consensual sexual relations between a married couple.

The ruling means that consensual anal and oral sex by a married couple, which has always been technically illegal in Idaho, may not be the basis of criminal charges.

But the ruling stresses that the ban does not apply if one partner is forced to take part.

David Holden, who was convicted in 1992 of sexually attacking his wife, won reversal of two convictions for committing an infamous crime against nature. However, it will do him little good.

He was sentenced to five to 25 years in prison for rape and forcible sexual penetration with a foreign object, and those convictions were upheld by the Court of Appeals on Thursday. All the prison terms were to run at the same time, so Holden won’t serve any less time.

In a unanimous decision written by Judge Karen Lansing, the court ruled that it was not proven that the wife was forced into some of the sexual acts she later complained about. Holden argued at trial that they were consensual.

The court ruled that since it was not shown that the wife was forced into acts that could be considered “infamous acts against nature,” oral and anal intercourse, the state law prohibiting that behavior is unconstitutional since it violates the privacy of a married couple.

“Accordingly, we can only conclude that Idaho’s statute prohibiting the infamous crime against nature may not be constitutionally enforced to prohibit private consensual marital conduct,” the court said.

The law has been on the books since the 1860s, when Idaho became a territory.

But the law wasn’t completely struck down. The court stressed that it applies only to consensual conduct between a married couple.

“We do not hold the statute invalid on its face and therefore unenforceable in all contexts,” the court said. “A statute that is overbroad in its scope and thereby abridges protected freedoms generally need not be stricken in its entirety.”

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