## Facts

- Aldo Mario Lovisi and Margaret Lovisi, a married couple, were convicted in Virginia state court of sodomy with each other under former Va. Code Ann. § 18.1-212.
- The couple placed magazine advertisements seeking “erotic sexual experiences” and met Earl Romeo Dunn, who visited their home multiple times.
- During a final encounter at their home, the three engaged in sexual activity in the Lovisis’ bedroom; Polaroid photographs were taken depicting oral sex.
- The matter came to police attention after one of Mrs. Lovisi’s daughters (age 13) brought an explicit photograph to school, triggering an investigation and search.
- Police discovered hundreds of sexually explicit photographs, including images of the adults engaged in oral sex.
- The children (ages 13 and 11) testified they were present during the sexual activity and took photographs; Dunn and Aldo Lovisi denied the children were present and claimed the adults took the photos (including by time-delay).
- The jury returned a general guilty verdict that did not resolve the factual dispute about whether the children were present during the acts.
- In subsequent federal habeas proceedings, the district court was skeptical the children witnessed the acts but found the Lovisis at least carelessly allowed erotic photographs to be accessible to the children.

## Issues

1. Whether the Constitution’s protection for marital privacy bars a state from punishing consensual oral sex between spouses conducted in their home when a third adult is invited to participate or observe.
2. Whether a married couple “waives” any otherwise protected privacy interest by involving a third party in sexual activity and by exposing explicit photographs of the activity to others, including minors.
3. Whether Virginia’s sodomy statute was constitutional as applied to the Lovisis’ circumstances.

## Decision

- The Fourth Circuit (en banc) affirmed the denial of federal habeas corpus relief.
- The court held the asserted marital-privacy right did not protect the Lovisis from prosecution on these facts.
- The court concluded that admitting a third party to participate in or observe the acts, together with the exposure of explicit photographs to children, placed the conduct outside the protected sphere of marital intimacy.
- The court upheld the Virginia sodomy statute as applied and left the convictions intact.

## Legal Principles

- Constitutional protection for marital intimacy is limited and does not necessarily extend to sexual conduct undertaken in the presence of, or with the participation of, non-spouses.
- Conduct that involves outsiders or that exposes sexual activity (or its depiction) beyond the couple may defeat a claim that the activity occurred within a constitutionally protected private marital sphere.
- A claimed privacy interest in marital sexual conduct may be treated as waived where the couple’s conduct shows willingness to expose the activity or its depiction to others, particularly minors.
- An as-applied challenge to a sodomy statute may fail where the defendants’ conduct is not confined to a private, two-person marital setting.

## Conclusion

The en banc Fourth Circuit held that the Constitution did not bar Virginia from punishing consensual oral sex between spouses where the acts occurred with third-party involvement and where the couple exposed explicit photographs to their children, and it therefore affirmed the denial of habeas relief and allowed the convictions to stand.


Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976) (en banc)