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Until a couple of weeks ago, Norfolk’s city code would have told you that having sex before marriage was illegal.
It isn’t, of course. Laws against so-called “fornication,” or sex outside of marriage, were ruled unconstitutional by the U.S. Supreme Court 17 years ago.
But until this year, Virginia state code still said fornication was a misdemeanor. And so did Norfolk’s city code.
Fear not, residents: Norfolk’s not becoming Sodom and Gomorrah. It’s not even becoming Amsterdam or Haight-Ashbury. It’s just catching up.
The effort to wipe away outdated — in some cases, centuries-old — legal concepts from the books has been a slow process.
While the current code was re-approved in 1958, “those provisions were probably in there going back to the 19th century,” said Jack Cloud, a deputy city attorney for Norfolk.
And what’s in the local ordinances often reflects the state’s own out-of-touch law book.
State Del. Mark Levine, D-Alexandria, has been seeking to remove the vestigial language on fornication from the state code for years. Virginia is for lovers, or so the state’s marketing says.
Finally, with a new Democratic majority in power, laws outlawing fornication were eliminated this year.
It may seem pointless at first glance. If the Supreme Court already said it’s not enforceable, and it’s not being widely used, why bother removing it from the state or city code?
“Everybody knows something like fornication isn’t a crime anymore, but sometimes you have situations where a rookie police officer may see it and not realize they can’t charge under it,” Cloud said. “You don’t want to have thing hanging around suggesting something is illegal and a crime and it’s not.”
That risk of lingering legal language is real.
Despite the 2003 U.S. Supreme Court ruling that made such laws moot, consensual sodomy — oral or anal sex — was a felony in Virginia until 2014. Dozens of people were charged under that defunct law in the years after it was ruled unconstitutional, as recently as 2012 and 2013.
Usually people were not charged with sodomy alone — after all, police don’t typically bust down doors to interrupt consenting adults. Often, it was an extra count that would be tacked on when someone was charged with another crime, such as prostitution.
In addition to eliminating the fornication clause, the Norfolk City Council’s Nov. 10 vote also repealed a law against adultery, though that remains a crime under state law. In theory, it’s punishable by a $250 fine. (In neighboring Maryland, it’ll only run you $10.)
Paupers and ‘home guards’
Cloud said he’s been advocating for an overhaul of the city code to eliminate out-of-date language. Some things haven’t been updated for more than a century.
“If we didn’t clean it up periodically, there would be stuff in there making it illegal to be a witch,” Cloud said.
But one thing the city can’t change on it’s own is its charter, the central foundation of the city’s government. Unlike the city’s laws, Norfolk needs approval from the General Assembly to alter that foundational document.
Last year, Norfolk asked that the General Assembly get rid of a clause in its charter left over from the 1800′s that let the city ban poor people, also known as “paupers.”
This year, the city is requesting to drop references to poll taxes and “home guards,” a kind of militia the city could in theory raise “in time of war or insurrection.”
Ultimately, it will be up to the General Assembly, but Cloud says the request is unlikely to be a point of contention.
One big, lingering issue in the city’s charter: the shape of the city itself.
See, the very first words of Norfolk’s charter are a description of the city’s boundaries. In painstaking detail — more than 600 words — it lists a series of distances, cardinal directions and landmarks — some no longer in existence.
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It starts at a specific point “on the port warden’s line of the Elizabeth river where the northern line of Forty-ninth street (formerly Forty-fifth street) intersects said port warden’s line, thence S. 24° 55′ W.”
Next, it instructs leaders to head “4450 feet, more or less, to the coal pier of Norfolk and Western railway at Lamberts Point, thence following the port warden’s line southeasterly and passing across the mouths of all tributary creeks.”
Read the full arcane description, and you’ll be left with a city that doesn’t look much like modern-day Norfolk. It wouldn’t include Larchmont or Campostella, Naval Station Norfolk or Ocean View, Military Circle or Poplar Halls.
That’s because the description in Section 1 of the Norfolk City Charter is from 1918. The city more than doubled in size when it annexed a huge chunk of land from Norfolk County in 1923, and then nearly doubled again with additions in 1955 and 1959.
All of the additions are represented in the charter only by amendments and footnotes, Cloud said.
“Sooner or later, it should all be incorporated into that Section 1 that sets out the official boundaries,” Cloud said.
Ryan Murphy, 757-739-8582, ryan.murphy@pilotonline.com