A judge in Idaho has invoked a rarely used “fornication law” in the sentencing of a 19-year-old who pleaded guilty to statutory rape last week. The law calls for a fine of up to $300 and six months in prison in the case of premarital sex.
The defendant, Cody Herrera, was sentenced last week to between five and 15 years in prison for raping a 14-year-old girl — he was 18 at the time — but the sentence has been suspended and Herrera will instead enter a rehabilitation program in which his behavior will determine whether he is released early on probation or whether he will need to complete the original prison sentence. If it is the former then premarital abstinence will be a condition of his probation.
According to the Times-News in Twin Falls, Idaho, Judge Stoker based his ruling on Herrera’s previous sexual history. He told the court, “I have never seen that level of sexual activity by a 19-year-old.” Herrera told investigators he has had 34 sexual partners. If the judge’s application of the law is not successfully challenged, then Herrera will face prison if he engages in consensual sex while on probation.
The imposition of the archaic law, upheld in only three states including Idaho, has proven controversial. Nancy Gertner, a lecturer at Harvard Law School and a former federal judge, has said fornication laws are unconstitutional following the 2003 United States Supreme Court decision in Lawrence v. Texas. That landmark case, which also disposed of sodomy laws, served to decriminalize the private sexual behavior of consenting adults.
Read the full story at the New York Times.