Martin v. Ziherl

Martin v. Ziherl
Court	Supreme Court of Virginia
Full case name	Muguet S. Martin v. Kristopher Joseph Ziherl
Decided	January 14 2005
Citation(s)	269 Va. 35; 607 S.E.2d 367; 2005 Va. LEXIS 7
Case history
Prior action(s)	Demurrer sustained, Richmond Circuit Court
Holding
Plaintiff's lawsuit for the intentional transmission of herpes was not barred by the judicial rule against recovering for injuries suffered while engaging in illegal conduct, because Virginia's criminal prohibition against sexual intercourse between unmarried individuals violated the Fourteenth Amendment to the U.S. Constitution. Richmond Circuit Court reversed and remanded.
Court membership
Chief Judge	Leroy Rountree Hassell, Sr.
Associate Judges	Lawrence L. Koontz, Jr., Cynthia D. Kinser, Donald W. Lemons, Elizabeth B. Lacy, Barbara Milano Keenan, G. Steven Agee
Case opinions
Majority	Lacy, joined by Koontz, Kinser, Lemons, Keenan, Agee
Concurrence	Hassell
Laws applied
U.S. Const. amend. XIV; Va. Code § 18.2-344

Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005), was a decision by the Supreme Court of Virginia holding that the Virginia criminal law against fornication (sexual acts between unmarried people) was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v. Texas, which established the constitutionally-protected right of adults to engage in private, consensual sex.

Muguet Martin and Kristopher Ziherl were an unmarried couple who had been in a sexually active relationship for two years when Martin's doctor diagnosed her with herpes. She then filed a lawsuit against Ziherl in the Richmond Circuit Court, alleging that he knew he was infected with herpes when they had unprotected sex, knew it was contagious, and failed to inform her. Her complaint claimed negligence, intentional battery and intentional infliction of emotional distress, for which she sought compensatory and punitive damages.

The Supreme Court of Virginia had ruled in Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), that plaintiffs could not recover damages for injuries suffered while participating in illegal conduct. As sex between unmarried persons was criminalized under Virginia's anti-fornication statute, Ziherl filed a demurrer in response to Martin's suit. Judge Theodore J. Markow rejected Martin's argument that the statute was no longer valid after Lawrence v. Texas, in which the U.S. Supreme Court found unconstitutional a Texas law criminalizing homosexual sodomy as an infringement upon the liberty of adults to engage in private and consensual intimate conduct under the due process clause of the Fourteenth Amendment to the United States Constitution. Judge Markow instead believed the fornication prohibition satisfied the rational basis review that Lawrence ruled the Texas statute failed, because the fornication law was reasonably related to the legitimate government goals of protecting public health and encouraging marriage for procreation. Ziherl's demurrer was sustained, resulting in the dismissal of Martin's suit. She subsequently appealed to the Virginia Supreme Court.

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