In sentencing a 19-year-old who pleaded guilty to statutory rape, an Idaho judge last week said his punishment would include an extra wrinkle: government-mandated celibacy, reports the New York Times. The unusual ruling by Judge Randy Stoker that abstinence would be a condition of probation appears to be based partly on a rarely enforced state law that forbids premarital sex. Unless the law were successfully challenged, a consensual sexual encounter could prompt a prison stay for Cody Herrera, who was 18 when he assaulted a 14-year-old girl.
Herrera was sentenced to five to 15 years in prison, but the sentence was suspended in favor of a rehabilitation program. Based on Herrera’s success in the program, a judge could release him on probation or send him to prison to serve the original sentence. Anyone free on probation is not allowed to break the law. Stoker made clear that would include fornication. “If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” Stoker said, according to the Times-News in Twin Falls. The judge cited Herrera’s sexual history as a factor in the condition; he told investigators that he has had 34 sexual partners. The abstinence restriction would apply only Herrera successfully completes the program and agrees to the terms of the probation. Idaho is one of several states that maintain fornication laws. Nancy Gertner, a lecturer at Harvard Law School and a former federal judge, said fornication laws stay on the books because they are enforced so infrequently that they have not been challenged. They would likely fail under legal scrutiny, she said.