In North Dakota, playing house is a sex crime
POSTED: 11:37 a.m. EST, January 18, 2007
Story Highlights
• Unmarried couples who live together are committing a sex crime in North Dakota
• State Sen. Tracy Potter wants to change the 1889 law
• Conservative groups want the law to stay on the books
• The law is rarely enforced

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BISMARCK, North Dakota (AP) -- In North Dakota, a man and woman who live together without being married are committing a sex crime. It's right there in the law, a state senator says, alongside the prohibitions against adultery, incest and indecent exposure.

Tracy Potter, a freshman Democrat from Bismarck, is asking the state Legislature to end North Dakota's status as one of seven states that have anti-cohabitation laws on the books. It has rejected three such attempts since 1990.

"Mark Twain expressed a simple view of people's personal relationships with government ... that I think government should adopt. That is, I don't care what you do, as long as you don't scare the horses," Potter said Wednesday during a North Dakota Senate Judiciary Committee hearing on his repeal measure.

In North Dakota, census data indicate at least 23,000 of the state's 642,000 residents are living together as opposite-sex partners.

The state has prohibited opposite-sex couples from living "openly and notoriously" as if they were married since North Dakota became a state in 1889. Florida, Michigan, Mississippi, North Carolina, Virginia and West Virginia have similar laws.

Attorneys say North Dakota's law has never been vigorously enforced. There is only one North Dakota Supreme Court decision on the subject, a 1938 case in which the justices upheld the cohabitation convictions of a man and woman who had been living together in the back of their secondhand store.

"If we mean to enforce this law, we'll need a $10 billion prison," Potter said. "We really don't want to enforce the law, and if we don't mean to enforce it, it's an insult to law enforcement to keep it on the books."

But state lawmakers did endorse a law six years ago allowing landlords to refuse to rent to opposite-sex couples who were not married.

In West Virginia, a former prison inmate is challenging the state's anti-cohabitation law because it delayed his parole from prison on forgery convictions. Officials rejected William Stanley's plan to move in with his fiancee after his release.

Last September, a North Carolina judge ruled the state's law was unconstitutional, in a lawsuit filed by a woman who lost her job as a county sheriff's dispatcher because she was living with her boyfriend. The decision was not appealed.

Kent Willis, director of the American Civil Liberties Union of Virginia, said his state's anti-cohabitation law does not often prompt lawsuits, because it is rarely enforced.

In one case, a Norfolk, Virginia, day care operator faced losing her license because she was living with her boyfriend, but the Virginia Department of Social Services renewed the license when the ACLU agreed to represent her, Willis said.

"It may have a more significant impact than we know," Willis said. "I can't tell you about how many times the law is invoked and used, but that individuals don't challenge the application of it."

Tom Freier, a spokesman for the North Dakota Family Alliance, said repealing North Dakota's anti-cohabitation law would signal that the state doesn't value marriage and the societal benefits it brings.

"If we look at the research, social science evidence suggests that living together is not a good way to prepare for marriage, or to avoid divorce," Freier said.

"Cohabitating is not positive for the family, and poses a special risk for women and children."