Justice and Due Process

The Legislature Talked About….. Sex?

For several years, one of our low-priority policy items has been to repeal unconstitutional sexual crimes: fornication, sodomy, and adultery. These rarely-enforced statutes were effectively stricken down by the U.S. Supreme Court in Lawrence v. Texas in 2003.

Writing for the majority, Justice Anthony Kennedy stated that “The State cannot demean [a person’s] existence or control their destiny by making their private sexual conduct a crime.”

In Utah, since that time, fornication, sodomy, and adultery have remained a crime. But these are difficult issues to resolve in a socially conservative state; who wants to be the legislator that sponsors a bill to legalize sleeping around?

An opportunity opened up when the Legislature created the Criminal Code Evaluation Task Force, a group of legislators, attorneys, and criminal justice stakeholders to review criminal laws and make suggestions for change. We were able to take advantage of this process to suggest that the Task Force propose repealing (among other things) these three crimes—and that’s exactly what happened.

Two bills came out of the Task Force this session HB40 and SB43. Among them, all three of these crimes were repealed, and now that the Governor signed them into law, they’re history.

Some have suggested that this wasn’t too big a deal because nobody was being charged with these “outdated” crimes, but that’s not true. Data from the courts in Utah reveal that in the past five years there were five criminal charges of fornication, one of adultery, and four for sodomy.

The state should not criminally punish private sexual conduct. These statutes needed to be eliminated to better confine the government to its proper role and now, as a result of this year’s Legislative session, that has happened.

But that’s not all the Task Force recommended for decriminalization. Along with these sexually-oriented repealers, there were other items, including:

  • Lowering the penalty for not returning your marriage license to the county clerk from a misdemeanor to an infraction;
  • Lowering the penalty for destroying or hiding a record that a person knows a government investigation might want to access from a second degree felony to an infraction;
  • Repealing a law that made it a mandatory third degree felony to steal property if that property was a stallion, mare, colt, gelding, cow, heifer, steer, ox, bull, calf, sheep, goat, mule, jack, jenny, swine, poultry, or a fur-bearing animal raised for commercial purposes;
  • Prohibiting the prosecution of a prostitute (or person involved in a “sexual solicitation”) if that individual comes forward to report that they were a victim of or witness to assault or worse physical violence; and
  • Lowering from 90 days to 30 days the mandatory incarceration of a person who fails to register on the sex or kidnapping registry as required.

The Criminal Code Evaluation Task Force was renewed by the Legislature this year and will be meeting throughout the summer to review additional laws to modify or repeal.