A civil rights attorney who sought two years ago to take state laws that make sex between unmarried people illegal off the books is trying again.
Brian Barnard filed a suit in U.S. District Court on Tuesday against Salt Lake County Attorney David Yocom and Utah Attorney General Paul Van Dam, saying fornication and sodomy laws enforced by the two offices violate Utahns' constitutional right to privacy.The laws prohibit intercourse and oral sex between unmarried adults.
"Government should not regulate what consenting adults choose to do in the privacy of their own bedrooms," Barnard said. "Twenty years ago all 50 states had laws like these on the books. But about half of the states have repealed them. This suit is trying to bring Utah up to speed with the more progressive states of the union."
Barnard filed a similar suit two years ago, but U.S. Magistrate Ronald Boyce told Barnard that Utah's old morality laws had not been enforced for many years so Barnard had no grounds for filing suit.
But seven months ago Yocom filed misdemeanor charges against a Murray high school teacher for committing fornication and sodomy with a music student. The teacher, Mathew Faerber, was charged with violating a Utah law which says "any unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of fornication." According to the law, fornication is a class B misdemeanor.
Yocom's office also charged Faerber with a class B misdemeanor for committing a sexual act involving the mouth of one person and the genitals of another. The sodomy law that prohibits such acts was amended in 1953 to exclude married people from the law. But it is still illegal in Utah for unmarried people to engage in such acts.
Each misdemeanor carried a jail term of up to six months and a $1,000 fine.
Faerber was 27 years old when the incidents occurred. His student was 18. Faerber also was charged with fondling two female minors during music lessons. The sodomy and fornication charges with the 18-year-old were dropped in exchange for a guilty plea to two counts of sexual abuse of a child.
Faerber was sentenced in February to six months in jail and fined $1,400.
Barnard filed the suit on behalf of W.N.J., an unmarried Utah woman who said she has committed several acts of fornication and sodomy as defined by Utah's laws in the past and plans to commit such acts in the future.
"I have a real concrete fear of criminal prosecution for engaging in such conduct," she said in a sworn affidavit. "I am aware that last year another person in Salt Lake County was criminally prosecuted for such conduct."
In her suit, W.N.J. asks the federal court to permanently prohibit Utah law enforcement agencies from prosecuting citizens for violating the fornication and sodomy laws. She also seeks attorneys fees and court costs.
Barnard named Van Dam a defendant in the suit solely because of his position, the suit said. Barnard named Yocom a defendant because he prosecuted Faerber.