Sexual laws restrictive for hetero behavior, too

Just after the Maine ban on same-sex marriage, the 31st state to oppose such unions, blogs are humming on sexual ethics in the public sector and just what role government should play in what happens in one's bedroom. However, this is not relegated to homosexuality. Heterosexual fornication, adultery and similar offenses are still on the books in many states, including my home state of Idaho. Though these offences are rarely prosecuted, they may just be. In 2004 in the state of Virginia, for example, John R. Bushey Jr., age 66, was sentenced to 20 hours of community work for having an affair with Nellie Mae Hensley, 53, who brought the misdemeanor-level crime to the attention of the police herself once Bushey broke off the affair.

The Washington Post reported on September 5 2004 that "[t]he prosecutor in Bushey's case, Assistant Commonwealth's Attorney Glenn Williamson, staunchly defends the state's interest in prosecuting adulterers. When a former lover comes to the police, he insists, the state must prosecute."

Idaho's code ups the ante: Adultery is considered a felony. There are actually multiple current sex crimes in Idaho, provided in the list below:

18-6601 ADULTERY. 18-6602 INCEST. 18-6603 FORNICATION. 18-6605 CRIME AGAINST NATURE -- PUNISHMENT. 18-6606 CRIME AGAINST NATURE -- PENETRATION. 18-6608 FORCIBLE SEXUAL PENETRATION BY USE OF FOREIGN OBJECT. 18-6609 CRIME OF VIDEO VOYEURISM.

Adultery is one of the most severe offenses, and is defined as: "[a] married man who has sexual intercourse with a woman not his wife, an unmarried man who has sexual intercourse with a married woman, a married woman who has sexual intercourse with a man not her husband, and an unmarried woman who has sexual intercourse with a married man, shall be guilty of adultery, and shall be punished by a fine of not less than $100, or by imprisonment in the county jail for not less than three months, or by imprisonment in the state penitentiary for a period not exceeding three years, or in the county jail for a period not exceeding one year, or by fine not exceeding $1000" (I.C. § 18-6601).

Note that "married" also includes those in divorce proceedings, because until someone is officially divorced, he or she is still officially married. This is further complicated by the fact that until property is legally divided, one or the other of the spouses can install recording devices in community-property locales and enter or exit without breaking any kind of privacy laws, even if the parties in the divorce proceedings have verbally agreed that one of them will have sole occupancy of their house.

I found this all out the hard way recently when my "ex"-husband entered the house after midnight on the suspicion that he would find someone in my bed. He did, and after a whirl of evidence-gathering from his carefully hidden recording devices, exited. The next day he announced he was charging us both with adultery. This was the first intimate encounter I had undergone in the state of Idaho during my marriage, and there was no sex prior to filing for divorce.

I called the city attorney to find out if this accusation would actually hold water, and she indicated that it would be referred to the County Prosecutor's Office. Problem: my "ex" husband is one of the prosecutors. Not to worry, she said; it would be sent to another court as a conflict of interest in that case.

After some chatting with my "ex," however, I found out that this might not be a good thing. The court it would be sent to would be in Southern Idaho, one of the most conservative in the whole country. My "ex" promised me that in his legal estimation, I would get the maximum jail time.

He was finally persuaded not to press charges, so I am not facing any investigation or prosecution at this point. However, for all of you in divorce proceedings residing in states with adultery laws: beware. You are not safe from the morality police.