## Facts

- Muguet S. Martin and Kristopher Joseph Ziherl were unmarried adults in a sexually active relationship from October 2001 to November 2003.
- In June 2003, Martin experienced an outbreak that her physician diagnosed as herpes.
- Martin alleged Ziherl knew he was infected, knew the virus was contagious, engaged in unprotected sex with her, and did not disclose his condition.
- Martin sued Ziherl seeking compensatory and punitive damages, asserting negligence and intentional tort theories (including battery and intentional infliction of emotional distress).
- Ziherl argued Martin’s claims were barred because sexual intercourse between unmarried persons was a crime under Virginia’s fornication statute, Va. Code § 18.2-344, and Virginia precedent barred recovery for harms arising from participation in illegal conduct.

## Issues

1. Whether Va. Code § 18.2-344, criminalizing sexual intercourse between unmarried persons, violates the Fourteenth Amendment’s Due Process Clause in light of *Lawrence v. Texas*.
2. If the statute is unconstitutional, whether the rule barring tort recovery for injuries arising from participation in illegal conduct nonetheless precludes Martin’s claims.

## Decision

- The Supreme Court of Virginia reversed the circuit court’s order sustaining the demurrer and dismissing the action.
- The court held Va. Code § 18.2-344 unconstitutional under the Due Process Clause as interpreted in *Lawrence v. Texas*.
- Because the criminal prohibition was unconstitutional, Martin’s conduct could not be treated as “illegal” for purposes of the illegality bar recognized in Virginia precedent.
- The case was remanded for further proceedings; the court did not decide the merits of Martin’s tort claims.

## Legal Principles

- The Fourteenth Amendment protects adult liberty to engage in private, consensual sexual intimacy; the state may not criminalize such conduct between consenting adults based on moral disapproval.
- The constitutional protection recognized in *Lawrence v. Texas* is not limited to same-sex conduct and extends to private, consensual intercourse between unmarried heterosexual adults.
- A doctrine barring tort recovery for injuries arising from an illegal act applies only when the underlying conduct is validly criminal; an unconstitutional criminal statute cannot supply the “illegality” predicate.

## Conclusion

Virginia’s fornication statute was unconstitutional as applied to private, consensual sexual intercourse between unmarried adults, so the illegality-based bar to recovery did not defeat Martin’s tort suit alleging negligent or intentional transmission of herpes; dismissal on demurrer was reversed and the case remanded.


Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005)