Counties still prosecuting ‘fornication’

TWIN FALLS, Idaho — Southern Idaho prosecutors are using an antiquated law to punish unmarried people who have consensual sex.

Twin Falls County Prosecutor Grant Loebs recently won a “fornication” conviction in the case of a 14-year-old girl from Buhl who had sex with an 18-year-old male. The male ended up being charged with lewd and lascivious conduct with a minor. His case is pending.

But she was sentenced to 90 days in the Snake River Juvenile Detention Center, including credit for three days served and 10 days of discretionary time. The other 77 days were suspended.

She also received nine months of probation and 20 hours of community service. She was also required to participate in the “Choices” program and counseling.

It’s also left her with a criminal record, and that’s one of the reasons why the fornication law is archaic, said Elizabeth Brandt, a professor of law at the University of Idaho. She said having a criminal conviction is a large burden for a young person to carry.

“It’s very, very troubling,” Brandt said.

Brandt said she believes the fornication statute is unconstitutional in the first place, partly because it has no limits on age.

“It criminalizes consensual, heterosexual sex,” she said.

Idaho’ fornication law prohibits unmarried people from having sex, but Loebs says enforcement has eased over the years. Police and prosecutors are unlikely to peek in windows and check for wedding bands.

Loebs said the charge is often used today as a plea alternative in sex-related cases, or it is used in cases where underage teens seek sex with older individuals.

Loebs said in many sex cases involving minors with adults, the older person potentially faces a felony charge but often the younger person is at least partially at fault and deserves to be prosecuted.

“The fornication charge allows us to do that,” he said.

Fornication has been prosecuted at least eight times in southern Idaho since 1999. The charge occasionally is pursued under its literal meaning, other times it ends up on an individual’s criminal record after he agrees to plead guilty to fornication in exchange for having more serious charges thrown out, such as rape or lewd and lascivious conduct.

Other Idaho laws regulating sex are also still on the books. It’s still illegal to commit adultery or perform homosexual acts. A law that prohibited unmarried men and women from living together was repealed in 1971.

During the last legislative session, Rep. Wendy Jaquet, D-Ketchum, proposed a measure to reform the state’s rape laws.

Today, an 18-year-old man can technically be charged with lewd and lascivious conduct with a minor if he has sex with his 17-year-old girlfriend. In the eyes of the law, he’s an adult having sex with a child.

Jaquet’s bill, which was not passed, would have made it so that consensual sex with 16- and 17-year-old girls wouldn’t necessarily be rape as long as young men weren’t more than three years older than their female sexual partners. Jaquet is working with other legislators and prosecutors to reformulate the bill.

“We really can’t do anything without the cooperation of the prosecutors because they’re not in support of the way the legislation is outlined right now,” Jaquet said. “The prosecutors think they don’t need to make a change.”