This Week in Ridiculous Criminal Laws V – Fornication

Working off of a post by Windy Pundit it brought to my attention a ridiculous criminal law.

720 ILCS 5/11-8 “Fornication.” This means having sex with someone that is not your wife, if the behavior is “open and notorious.”

A quick spin through the annotated statute on this point shows that no cases have really been pursued in this area since the 40’s and 50’s in Illinois. But when they did, it was a doozy of antiquated racial and sexual mores not currently in vogue (I hope).

In People v. Potter 319 Ill. App. 409 (1943) the court was questioning what constituted “open” for the purposes of “open and notorious.” In that case, the neighbors knew of the comings and goings of a married woman to man’s home (whose own wife had left him already). Also, there was testimony that the woman bathed, shaved and cooed about her man in his home (although they were never seen in public together) by the man’s 14-year-old daughter. And while it wasn’t a crime for the couple to practice miscegenation, pointedly the court notes that the man in the case is white and the woman is black. The money quote:

“The conclusion is irresistible that the statute upon which this prosecution is predicated was designed to prohibit such public scandal, and disgraceful living together of persons of opposite sexes in such notoriously illicit intimacy; that which outrages public decency and has a debasing and demoralizing influence upon society.”

Really? Demoralizing influence on society? I know this case is literally from a different era, but I can’t help but laugh. And while there may be some today who still believe that it is a downfall of our society to have people living together and fornicating without the blessing of a marriage certificate (and certainly, only between a man and a woman), I can’t help but shake my head at this sort antiquated thinking.

Fornication (open and notorious, or secret and clandestine) is none of your damn business. Not you, Mr. Politician, not you Mr. Prosecutor, not you Mr. Nosy Neighbor. It’s sex, it’s private, it’s not harmful as long as it’s between to consenting adults (and yup, Windy Pundit, that’s any two people over 17) and it’s long time in coming that this ridiculous criminal law be taken off the books.


3 responses to “This Week in Ridiculous Criminal Laws V – Fornication

  1. No politician loses votes by not proposing to repeal this law. But there are still people who’d vote against a politician who was “pro-fornication.”

    And am I wrong to think that these sections of the law are very badly written? Or is it all like that?

    By the way, I’d just like to point out to your readers that I’m not asking about any of this for personal reasons.

  2. “[T]his ridiculous criminal law [should] be taken off the books.”

    I disagree. It can come in handy when looking for a creative plea. For example, if someone is charged with criminal sexual abuse, as a defense attorney, you want to avoid that conviction for your client if you can. Fornication is a much better conviction for a client to have if you can convince the State to amend the charge to it. Battery could work too. (This was recently discussed on one of the ISBA e-mail discussion lists.)

  3. Jeremy –

    You know…that’s a great point! I’ve only handled a few sexual assault cases, in one case, pleading a guy down from misdemeanor sexual assault for pulling his….member…out in a public library down to disorderly conduct.

    While I agree with you that pleading a client down to this would be a better outcome than criminal sexual assault…I prefer to think you’re using a poorly written and anachronistic law to your advantage.

    That doesn’t change my position that it’s ridiculous!

    And Windy, a healthy interest in the law would never make one think you were….deviant.

    And one final point, this section is fairly poorly written. But few sections of the Illinois Criminal Code are well written….politicians amend, redo, rework and write over the old laws without compunction or thought. A major revamping of the criminal code is due…Jeremy…I thought there was a big push for this in Springfield?

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