Doe v. Duling

Brief Fact Summary. Appellees brought suit challenging Virginia criminal statutes outlawing fornication and cohabitation. Appellees did not allege prosecution or threat thereof, but rather alleged that they had ceased participating in such activities due to fear of prosecution.

Synopsis of Rule of Law. To challenge the validity of a criminal statute the challenging party must show a threat of prosecution under the statute to present a case or controversy.

Facts. Appellees Jane Doe and James Doe were unmarried adults that engage in sexual intercourse in Richmond, Virginia with unmarried members of the opposite sex. Jane Doe further alleges that she engaged in unlawful cohabitation. These acts violated Virginia statutes outlawing fornication and cohabitation. Neither has been arrested or threatened with arrest, but claim that they have abstained from such acts due to fear of arrest which could cause personal embarrassment and affect their professional standing. Appellees submitted depositions of police officers stating that all laws are enforced and that they would investigate allegations of cohabitation and fornication, time permitting. However, no arrests for cohabitation had occurred in recent history and no recent fornication arrests had involved fornication in a private residence. The district court found that the appellees had standing because of the threat of prosecution.

Issue. Do appellees have standing to challenge Virginia statutes criminalizing fornication and cohabitation when recent history demonstrates that such laws have not been enforced?

Held. Appellees lack sufficient standing to challenge such statutes
According to United States Supreme Court precedent, one must show a threat of prosecution under a criminal statute in order to present a case or controversy. Subjective fear of prosecution does not establish an objective threat. To address this issue would result in an abstract debate better suited for the legislature.

Discussion. Because the appellees did not allege that they had either been prosecuted or threatened with prosecution under the statutes, they lacked standing.