Minnesota statutes on sexual activity need an overhaul

By Dee Long

Former state Rep. Dee Long, DFL-Minneapolis, the first female speaker of the Minnesota House, is retired. She has been nominated as an elector for the 2012 presidential election.

Should Minnesota statutes that refer to sexual activity between consenting adults be revisited? When one of the alleged participants in the ongoing saga of indiscretions in the state Senate was quoted as saying that "she had broken no laws," it made me wonder if the adultery statute had been repealed. But no, the law still stands, along with several other little-known provisions most notable for their lack of enforcement.

Minnesota Statute 609.36, contained in the Crimes Against the Family section of the chapter, along with prohibitions against incest and bigamy states that When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. In the matter of enforcement, however, the law limits prosecution to complaints brought by the offenders' spouses — an approach that might be characterized as, "If they don't care, why should we?"

An interesting gender anomaly exists between the adultery and fornication statutes. Section 609.24 defines fornication as When any man and single woman have sexual intercourse with each other, each is guilty of fornication, which is a misdemeanor. Interestingly, the marital status of the male miscreant doesn't matter, only that of the female. Also, adultery carries a maximum penalty of a year in jail and a $3,000 fine, while fornication carries only a $1,000 fine with no time served. Evidently complaints can be brought by anyone. The fornication statute resides in the Sex Crimes section of the chapter, along with prostitution, bestiality and other offenses.

One might wonder why these laws remain on the books, since they haven't been enforced in anyone's memory. Even in the face of court decisions declaring similar laws unconstitutional, they are still the law in Minnesota.

In 2001, the Minnesota District Court ruled the sodomy statute "unconstitutional as applied to private, consensual, non-coerced acts of sodomy by consenting adults because it violates the rights of privacy guaranteed by the Minnesota constitution." Minnesota Statute 609.293 defines sodomy as carnally knowing any person by the anus or by or with the mouth and carries a maximum sentence of one year and/or a fine of $3,000. The law applies regardless of the marital status or gender of the participants. If charges were ever brought under this statute, it's pretty obvious that case law would trump statutory law, but the existence of the statute leaves open the possibility of harassment and malicious prosecution in the state of Minnesota.

But in the current political climate at the Legislature, the problems with the current statutes might actually be compounded. A couple of years ago, then-Sen. Ellen Anderson suggested the possibility of repeal, but was met with the Minnesota Family Council's response that these laws should actually be strengthened.

The senate staffer recently dismissed following the alleged affair is charging gender discrimination. He states that numerous female staff members kept their jobs despite having affairs with male legislators. It appears to this observer that legislators need to clean up their acts, clean up the statutes, or, preferably, do both.

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