Fornication refers to acts of sexual intercourse between two people who are not married to one another. It is different from adultery, which occurs if at least one of the two intercourse partners is married to someone else, though fornication and adultery are often associated as similar transgressions. The term fornication derives from the Latin fornix, which means archway; the vaulted arches of churches are called fornications. The term gained its sexual connotation because prostitutes in Rome often solicited business from the archways of buildings. In the early twenty-first century, fornication is a slightly obsolete, archaic term, connoting issues of sin and morality, and employed in the context of religious discussions of sexual behaviors.
The category of fornication represents the intersection of religion and/or morality with criminal legislation enacted by governments. Prohibitions against fornication derive from cultures in which religious laws were the laws that governed the society, as in Judaism, Islam, and Christianity, at various times in history. In Old Testament law, fornication was a version of idolatry or adultery, both prohibitions listed in the Ten Commandments. Idolatry or worshiping another god was considered a form of fornication in so far as illicit intercourse served as an analogy for unfaithfulness. Extramarital intercourse represented a breach of marital vows. Although all extramarital sexual acts were serious infractions of both religious and civil laws, premarital sex was less serious than adulterous sex, although having premarital sex might produce a marriage under Jewish law. Islamic law followed the Old Testament prohibitions against pre- and extramarital sexual relations, classifying such behaviors as zina, or the most serious kind of transgression. Christianity, too, forbids fornication, based on both Old and New Testament proclamations. Asian religions also forbade fornication. The Hindu holy book, the Bhagavad Gita, prohibits adultery and premarital sex, and Buddhism understands all sexual activity as a barrier to self-righteousness.
The rationale for prohibitions against pre- and extramarital intercourse came from the societies' need to maintain familial integrity and identity, guarantee the legitimacy of children, and protect unmarried women from interference or their own premature desires. As postindustrial societies devised state-enforced criminal codes, transgressions such as fornication were most often codified along with other moral wrongs as defined by the dominant religion.
As Renaissance (1300–1699) and Enlightenment (1600–1799) governments began producing criminal laws, issues of morality such as fornication were defined as behaviors that were against the law. Criminal laws forbade premarital sex, extramarital sex, and adultery. The early North American colonies adopted antifornication laws. In 1642, for example, the Massachusetts colony enacted a law against fornication that stated "that if any man shall commit Fornication with any single woman, they shall be punished either by enjoining to Marriage, or Fine, or corporal punishment, or any or all of these as the Judges of the courts of Assistants shall appoint most agreeable to the word of God." Under the Napoleonic Penal Code of 1810, husbands could divorce wives who committed adultery, though the husbands' own behaviors were less restricted.
Modern governments still have antifornication laws, which criminalize nonmarital cohabitation, adultery, and prostitution. Any kind of extramarital intercourse is a crime in most Muslim countries, and the laws are often enforced, yielding harsh punishments for malefactors. In many countries with such laws, the woman is treated more harshly than the man, perpetuating sexist myths about the provocative powers of women. In European and North American countries, antifornication laws usually define sex as vaginal intercourse between two persons not married to one another and treat the partners as equally culpable. Antisodomy laws, or statutes making anal intercourse a crime even between married partners, are also considered to be antifornication laws. Although ten of the states in the United States still criminalize fornication, many states have begun to repeal such laws in light of the 2003 U.S. Supreme Court decision in Lawrence v. Texas. In 1977, well before the Lawrence case, a New Jersey court struck down a New Jersey antifornication statute, stating that antifornication statutes involve "a fundamental personal choice" that people have the right to make without governmental interference. The court, in New Jersey v. Saunders, premised its declarations on a constitutional right to privacy that "secures conditions favorable to the pursuit of happiness." In 2005, in Martin v. Ziherl, the Supreme Court of Virginia found that state's antifornication statute unconstitutional, declaring that because a majority views a behavior as immoral "is not a sufficient reason for upholding a law prohibiting the practice" and that individuals' decisions about their intimate lives are a "form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." Given these court decisions, some states repealed their antifornication laws, but others retain them. In almost every state such laws are rarely, if ever, enforced.
PLACE IN THE SOCIAL IMAGINATION
Despite the increasing separations between traditional morality and state criminal laws, the idea of fornication still has a powerful place in the social imagination. It has long provided a subject for literature and matter for censorship. William Shakespeare's play Measure for Measure (1604), for example, portrays a civic leader who insists on prosecuting fornicators. The duke is not envisaged as a sympathetic character, but as one who would destroy the joys of love. Such eighteenth-century novels as Samuel Richardson's Clarissa and Pierre Choderlos de Laclos's Dangerous Liaisons portrayed the scandals of fornication as did nineteenth-century novels by Leo Tolstoy, Gustave Flaubert, and Émile Zola. In the twentieth century, literature depicting fornication and adultery, such as D. H. Lawrence's Lady Chatterley's Lover and Henry Miller's Tropic of Cancer, were initially banned for their scandalous content.
In the early twenty-first century, the term fornication conveys an archaic notion of sin, especially in the face of more liberal beliefs about sexuality and personal freedom. The availability of birth control, the sexualization of culture, and the independence and mobility of individuals makes extramarital sexual activity both more possible and less risky in terms of possible pregnancies or, often, other familial ramifications. The number of children born out of wedlock or who live in nonpatriarchal nuclear families makes the constraints of fornication laws seem outdated and unnecessary. Nonetheless, government programs advising teen abstinence from sexual activity still depend upon the connotations of sin that the term fornication conveys, returning sex education to the realm of morality over considerations of health, choice, or safety.
Gaca, Kathy L. 2003. The Making of Fornication: Eros, Ethics, and Political Reform in Greek Philosophy and Early Christianity. Berkeley: University of California Press.
Lawrence v. Texas, 539 U.S. 558 (2003).
Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005).
New Jersey v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977).
Posner, Richard A., and Katharine B. Silbaugh. 1996. A Guide to America's Sex Laws. Chicago: University of Chicago Press.