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Martin v. Ziherl - 269 Va. 35, 607 S.E.2d 367 (2005)


Va. Code Ann. § 18.2-344 is unconstitutional because by subjecting certain private sexual conduct between two consenting adults to criminal penalties it infringes on the rights of adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the United States Constitution


Martin and Ziherl were unmarried adults in a sexually active relationship from approximately October 2001 through November 2003. Martin experienced a vaginal outbreak in June 2003, which her physician diagnosed as herpes. Martin filed a motion for judgment against Ziherl alleging that he knew he was infected with the sexually transmitted herpes virus when he and Martin were engaged in unprotected sexual conduct, knew that the virus was contagious, and failed to inform Martin of his condition. In the two-count motion for judgment, Martin asserted claims of negligence, intentional battery and intentional infliction of emotional distress against her partner and sought compensatory and punitive damages.

Ziherl filed a demurrer asserting that Martin's injuries were caused by her participation in an illegal act under Va. Code Ann. § 18.2-344. Therefore the motion for judgment did not state a claim upon which relief could be granted. Following a hearing, the trial court sustained Ziherl's demurrer holding that that Va. Code Ann. § 18.2-344 was valid and the state had valid reasons such as the protection of public health and encouraging marriage for the procreation of children are "rationally related to achieve the objective of the statute." Martin appealed.


Can Ziherl use the violation of Va. Code Ann. § 18.2-344 as his defense to Martins claims?




The reviewing court held that § 18.2-344 was an unconstitutional infringement upon the right of two adults to engage in private, consensual sexual intercourse. As such, § 18.2-344 violated the Due Process Clause of the Fourteenth Amendment. Therefore, Martin’s participation in an act that violated § 18.2-344 did not provide a defense to Ziherl in the instant case.

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