Jerry Kopel


April 5, 2008

By Jerry Kopel

March madness? Maybe it refers to New York's past and present governors, Eliot Spitzer and David Paterson, both admitting directly or indirectly to adultery. Yes, a married person having sex with a prostitute does, under present Colorado law, commit adultery.

For most of Colorado's history as a territory and state, adultery and fornication were crimes. The statute was passed in 1861, when Colorado's territorial legislature met for the first time. And the statute never changed until 1971. For 110 years, the definitions and punishments were never amended. The statute read:

"Any man or woman who shall live together in an open state of adultery or fornication, or adultery and fornication, every such man or woman shall be indicted, and on conviction be fined in any sum not exceeding two hundred dollars each or imprisonment in the county jail not exceeding six months.

"This offense shall be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy; and for a second offense such man or woman shall be severally punished twice as much as the former punishment , and for a third offense treble, and thus increasing the punishment for each succeeding offense .

"It shall be in the power of the parties offending to prevent or suspend the prosecution by their intermarriage, if such marriage can be legally solemnized, upon the payment of the costs of such prosecution."

Let's suppose an habitual fornication offender is hit with six months in the county jail. If my arithmetic is accurate, and if "former" means "the last prior", the fourth offense could bring 12 years in the county jail.

The "live together" presumption in the statute was held by the courts to be the job of the jury to determine.

The statute appeared more for "show" than use. And "lewd houses" were also banned in 1861, always disappearing and reappearing in corrupt fashion.

Prostitutes defined? The statute read: "Any prostitute, courtesan, or lewd woman, who, by word, gesture or action, shall endeavor to ply her vocation upon the street ... house ... or public place, or who, for such purpose, shall make a bold or meretricious display of herself ...." Actually the Latin word for prostitute is meretrix.

Punishment was a $100 fine and 10 days to three months in the county jail.

In 1971, the state legislature became deeply involved in a massive rewrite of the state's criminal laws, sponsored by Sen. John Birmingham (R) and Rep. Ralph Cole (R). Helping to guide the revision was Denver District Attorney Dale Tooley.

Fornication was dropped from the statute. The statute defining adultery dropped any reference to living together and is presently CRS 18-6-501: "Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited."

"Prohibited" is a legal term as in "trespassing prohibited". According to Black's law Dictionary, prohibited means "to forbid by law".

Since we did not call adultery a felony, misdemeanor, or petty offense, we avoided triggering penalties presently found in 18-1.3-503 to 505, and 18-1.3-402 for offenses lacking specific penalties.

I was a member of the House Judiciary Committee when we discussed the criminal law revision sponsored by Birmingham and Cole. One witness testifying at length on the bill was now-deceased, but then retired state Supreme Court Justice O. Otto Moore, who was working with DA Tooley, on the measure.

I threw Justice Moore the biggest interrogatory softball I have ever thrown. "Justice Moore" I asked "can you explain to the committee the difference between adultery and fornication?"

The retired justice paused, and then with a straight poker face, said "Well, I have tried both and did not notice any difference."

The bill passed committee without dissent.

(Jerry Kopel served 22 years in the Colorado House)

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