I.R.C. § 152(b)(5) and Victorian Morality in Contemporary Life

t Assistant Professor of Law, Wayne State University. J.D., 1968, University of Oregon. LL.M., 1986, George Washington University. 1. See Model Penal Code & Commentaries § 213.6 note on adultery and fornication (1980). 2. See, e.g., Cal. Penal Code, tit. 9 (Deenng 1993) (none of many sex-related crimes punish consensual activities between adults). Cf. MODEL PENAL CODE & COMMENTARIES §§ 213.0-213.5 (1980). One of the notes to § 213. 1 states that "the Model Code does not criminalize consensual sexual conduct between adults." Id. § 213.1 note. The Commentaries to Model Penal Code Art. 213 include a long "Note on Adultery and Fornication" discussing the many rational reasons why those activities are not proscribed in the Model Code, including the fact that lack of prosecution tends to breed disrespect for the law generally. Id. 3. See, e.g., Ala. Code § 13A-13-2 (1994) (sexual intercourse by married person with one not spouse and "lives in cohabitation" with that person); Fla. Stat. Ann. § 798.01 (Harrison 1991) ("lives in open state of adultery"); R.I. Gen. Laws § 11-6-2 (1993); Utah Code Ann. § 76-7-103 (1994); State v. Thompson, 31 Utah 228, 87 P. 709 (1906) (each act of sexual intercourse a separate offense); W. Va. Code § 61-8-3 (1994) (includes both adultery and fornication). 4. See, e.g., Ariz. Rev. Stat. Ann. § 13-1409 (1994) ("open and notorious cohabitation or adultery"); Colo. Rev. Stat. Ann. §§ 18-6-201, -203 (West 1994) (crime of "bigamy" includes mere "cohabitation" while still married to another; "cohabitation" means living together "under the representation of being married"); Fla. Stat. Ann. § 798.02 (Harrison 1991) ("lewdly and lasciviously associate and cohabit together"); N.M. STAT. ANN. § 30-10-2 (Michie 1978) ("Unlawful cohabitation consists of persons who are not married to each other cohabiting together as man and wife."); N.D. Cent. Code § 12. 1-20-10 (1993) (living "openly and notoriously . . . as a married couple without being married. . ."); Va. Code Ann. § 18.2-345 (Michie 1994) ("lewdly and lasciviously associate and cohabit together"); W. Va. CODE § 61-8-4 (1994) ("lewdly and lasciviously associate and cohabit together"). 5. See, e.g., Va. Code Ann. § 18.2-344 (Michie 1950) (voluntary sexual intercourse by an unmarried person). 6. See, e.g., Ala. Code §§ 13A-6-63 to 13A-6-65 (1975); ARK. CODE ANN. § 5-14-101 (Michie 1987) ("deviate sexual activity"), § 5-14-122 ("sodomy"); IDAHO CODE § 18-6605 (1994) ("infamous crime against nature"), State v. Larson, 81 Idaho 90, 337 P.2d 1, cert, denied 361 U.S. 882 (1959) (§ 18-6605 includes sodomy, fellatio), State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916) (same holding as Larson)); IND. CODE Ann. § 35-41-1-9 (Bums 1994) ("deviate sexual conduct" defined broadly to include essentially all sexual acts other than heterosexual genital-to-genital sex); MINN. Stat. Ann. § 609.293 (West 1994) (voluntary, consensual sodomy prohibited); N.Y. PENAL Law § 130.38 (McKinney 1987) (consensual sodomy prohibited); R.I. GEN. LAWS § 1 1-10-1 (1994) ("abominable and detestable crime against nature") ("sodomy" was held surplusage when used in conjunction with charge of "abominable and detestable crime against nature," State v. Castore, 435 A.2d 321, 324 (R.I. 1981)); Utah Code Ann. § 76-5-403 (1953) (covers both consensual and nonconsensual sodomy); Va. Code Ann. § 18.2-361 (Michie 1994) ("crimes against nature," sexual acts with mouth or anus, consent not relevant). The District of Columbia's rather harsh sodomy statute was amended to exclude acts between