Adultery and fornication; unlawful cohabitation- still hanging on in a few states

April 7, 2007

This essay has a back story, a conversation with a friend who brought up his concern aboout laws still on the books at the state and federal level that are obsolete.  I brushed him off, and was a bit arrogant in pointing out that these laws are unenforceable and don't mean anything.

Only a day later, as if the world was conspiring to put me in my place, there was this article in the L.A. Times, "No longer a crime to 'live in sin' in Florida." that made my friend Doug's point, that these laws do exist, and still do in several states including Mississippi.  I had told Doug that these laws are never enforced as they are unconstitutional, but that was a weak answer and not quite true.  While a working cop or deputy sheriff (the title given to the hundreds of first level police officers in many counties of this country with an elected Sheriff) would never arrest someone for this crime, it could be done on the orders of high level officials, who would decide to challenge a supreme court decision.

Two people living together could be arrested, and perhaps even charged, before someone in authority orders them released.  Yet, the harm would have already been done to two people, or perhaps a family who have committed no social offense.

I decided to go a bit further to look up the Mississippi criminal code on this subject, which I reproduce here:

§ 97-29-1. Adultery and fornication; unlawful cohabitation.


If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.  

I would doubt that those who were arrested would have much of a chance of successfully pursuing civil action against any official of the state who arrested them, since they were following the law.   What is interesting, is that if it were two people of the same sex who were cohabiting including, "fornication" their arrest would be illegal as the law applies specifically to "a man and woman"  

While the criminal penalties for cohabitation are not enforced, the law does have consequences, which is one explanation why it has not been simply removed such as just happened in Florida,  This is from the website of a lawyer specializing in family law:

And lastly, persons who cohabitate may enter into a cohabitation agreement, which is a written agreement that generally outlines specifics regarding the extent of cohabitation (including an anti-nuptial clause stating that the parties are not and will not be married) and outlines what happens in the event the relationship is terminated, including how certain property accumulated during the relationship would be divided. However, be aware, cohabitation agreements may be per se unenforceable or invalid as violations of Mississippi public policy, and Mississippi courts are likely “unwilling to extend equitable principles . . . since recovery based on principles of contracts . . . would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature.” In re Estate of Alexander, 445 So. 2d 836, 839 (Miss. 1984) (quoting and adopting Carnes v. Sheldon, 311 N.W.2d 747, 753 (Mich. App. 1981)). As stated earlier, cohabitation is not supported by Mississippi public policy, and therefore Mississippi courts may very well be hesitant to validate cohabitation agreements where the Mississippi legislature has expressly forbidden cohabitation by statute

There are law, there are contracts, and then there are covenants. Most of us live our lives with a sense of all of them, which affect us and which don't.  Kinda interesting subject.