The Norfolk paper reports here ("Suit saying man spread herpes could uproot state coitus law," 8/25/04) that a lawsuit brought by a woman who claims a man intentionally infected her with herpes could force the Virginia courts to rule on whether the Virginia fornication statute is unconstitutional, and therefore the woman's damage claim would not be barred by a defense of illegality. Defense lawyers know the case of Zysk v. Zysk, 232 Va. 32, 404 S.E.2d 721 (1990) in which the Virginia Supreme Court held that a woman in similar facts could not recover damages for contracting a disease from a sex partner with whom she was not married, which is illegal under the fornication statute, because as a principle of Virginia law, no recover is allowed for participation in an illegal act (thus modifying the Biblical admonition to something like "the wages of sin . . . is no damages").
The constitutional argument is based on ruling by the U.S. Supreme Court in Lawrence v. Texas, which threw out a criminal conviction for consensual sodomy. Last year, I wrote this post ("The effects of the Texas sodomy case on Virginia law"), concluding that the Virginia fornication statute is likely to be invalid (at least for private, consensual acts). Supporters of the statute might argue, however, that the facts of the Virginia Beach case show why the Commonwealth has a rational basis for a prohibition against unmarried persons having sex, to prevent the spread of disease.