Mopping up operation on sex crimes

Sometimes these decisions are slow to surface.  Today Westlaw turned up an August 25 opinion by Presiding Superior Court Judge Benjamin Alford of Pender County, North Carolina, declaring unconstitutional NCGS 14-184, which provides "If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other."  Hobbs v. Smith, 2006 WL 3103008.  In the North Carolina statutes, the title for this provision is "Fornication and Adultery" - a bit surprising, since the crime, as described, while possibly pertaining to situations involving both of those, is really just open cohabitation by an opposite-sex unmarried couple. 

The opinion (which is designated by the court as "unpublished") says merely that the court is of the opinion that the statute "violates plaintiff's substantive due process right to liberty as explained in Lawrence v. Texas."  In a footnote, the court makes the point that the statute is "vague and overbroad to the extent that its title purports to apply to adultery, which is beyond the scope of the statute's terms," and indicates that it is not passing judgment on whether a properly drawn adultery statute would be constitutional, or whether there are any constitutional problems with other places in the state's civil statutes where adultery is referenced.

The opinion says nothing about the facts of the case.  A little research turned up an article in the News & Observer, evidently a local newspaper, dated from July 21.  The case was filed by Debora Lynn Hobbs, who had been employed by the county as an emergency dispatcher until the sheriff discovered that she was living with a boyfriend and told her she had three choices: marry, move, or leave her job, citing the criminal statute.  Hobbs quit her job rather than marry or move, and filed this suit challenging the constitutionality of the statute. 

The Rev. Mark Creech of the Christian Action League of North Carolina was quoted in the article.  He thought the decision was "terrible" and an example of "judicial activism," claiming that it "knocked down the law that is a cornerstone of state marriage policy." 

This is so incredibly laughable that one wonders what this guy is drinking...  If a law against cohabitation is a cornerstone of state marriage policy, why are there not scores of prosecutions filed every day charging unmarried cohabitants with its violation?  Unless North Carolina is startlingly different from the rest of the country, a significant portion of its households consists of unmarried opposite-sex couples, happily cohabitating without benefit of marriage or any real fear of loss of their jobs or criminal prosecution.  The News & Observer article reports that according to the latest US Census figures, there are about 148,000 people in the state who report living with an adult of the opposite sex outside of marriage...  Yet prosecution records show that there were 35 individuals charged with violating the statute from 1997 to 2003, and but seven convictions.  (Actually, it's startling to think that there were even that many in the years leading up to Lawrence v. Texas.)

Hobbs was represented by the ACLU of North Carolina, whose executive director, Jennifer Rudinger, said that "the idea that the government would criminalize people's choice to live together out of wedlock in this day and age defies logic and common sense."

Judge Alford issued a handwritten ruling on July 20, his more formal ruling on Aug. 25.