One of the smallest bills I passed this year was HB 1166, but because of the subject matter it garnered a fair amount of attention from the news media. The bill repealed the defunct criminal prohibition against adultery and another criminal statute punishing sexual immorality. Now you can see why the media took an interest…
I first sponsored this bill in 2011 as SB 11-244 and Rep. Daniel Kagan was my House sponsor. It easily passed the Senate but was defeated by a one-vote margin in a House committee. Rep. Kagan felt bad that the bill died on his watch so he decided to bring it back in the new legislature as HB 13-1166.
Rep. Kagan told me that one of the reasons he wanted to bring it back was because of the clever way it was constructed. He called it “brilliant.” The title is “a bill for an act concerning the repeal of certain crimes that include marital status as an element of the offense.” The title accurately describes what the bill does. The media attention focused on adultery, and while they accurately described the bill, the ulterior motive behind the bill has been a well kept secret, until now.
In 2010 I sponsored a bill that then-Rep. Steve King started in the House to reform state laws on indecent exposure and public indecency. HB 10-1334 corrected confusion between these two criminal offenses, one of which is more serious than the other and results in mandatory sex offender registration. It seems that Rep. King had a constituent who was ticketed for urinating in public somewhere near the vicinity of Coors Field after the conclusion of a baseball game. I think the gentleman was a beer drinker. His offense required him to register as a sex offender. Meanwhile, flashers exposing themselves to others were not being required to register as sex offenders. The laws were backwards and HB 1334 intended to straighten them out. It did prove challenging to define the difference between exposing private parts in sinister ways befitting of sex offenders and doing so in stupid ways like college kids streaking across a football field, or urinating in an alley after a baseball game. The final version of HB 1334 was not perfect, but everyone agrees that we fixed most of the problems.
As I was working on amendments to HB 1334 I noticed a phrase in the public indecency statute that made me suspicious. The statute outlawed having sexual intercourse in public, and it also outlawed having “deviant sexual intercourse” in public. I looked for a definition of “deviant sexual intercourse” and could not find one in current law. Research from the Office of Legislative Legal Services revealed that this had once been a defined term, but the definition was repealed many years ago when Colorado repealed its law criminalizing sodomy. As I suspected, “deviant sexual intercourse” was code from a bygone era that meant gay sex. In studying the current definition of “sexual intercourse” it became readily apparent that this term is defined broadly enough to encompass a broad swath of sex acts. It was not necessary to separately list “deviant sexual intercourse” in the public indecency law because it was already covered by the preceding subparagraph. So I amended HB 1334 to repeal it.
Learning this history of how state law once referred to sexual intimacy between persons of the same sex made me wonder if there were other places this offensive, undefined term remained in law. So I did some more research and discovered the crime of “promoting sexual immorality,” section 18-7-208, C.R.S. It used the same offensive language, which I was now determined to eradicate from the Colorado statutes. And as I studied that section, I discovered that it applied only to people who were not married to each other and criminalized their private, adult, consensual conduct. I believe such laws are clearly unconstitutional in light of the US Supreme Court’s decision in Lawrence v. Texas, which overturned sodomy laws and recognized a liberty interest in private, adult sexual conduct.
To make the statute all the more outrageous, it created a crime that only innkeepers or people who furnish rooms for unmarried adults could commit. This was clearly an example of government intrusion into private matters where government does not belong. The statute was bizarre, rarely used, unconstitutional, and contained the offensive language I was determined to remove from Colorado statutes. It needed to be repealed.
Enter the adultery statute. I had always wanted to repeal this law, but it was never important enough to spend much time thinking about. Years ago, the Colorado criminal code was recodified. This is when the sodomy law was repealed, and there were suggestions to repeal the adultery law as well. A bill was drafted to implement the recodification recommendations, but the repeal of the adultery law became controversial and a compromise was reached to leave a criminal prohibition of adultery on the books but specify no penalty. Without a penalty the law could never be enforced, but its statement remained.
As I contemplated a bill to repeal the “promoting sexual immorality” statute I realized that it could be combined with a repeal of the adultery law under the common theme of criminal offenses for which an actor’s marital status is an element of the crime, and SB 11-244 was conceived. I successfully argued the constitutional arguments against both statutes and drove home the idea that government should not be in the business of policing marital vows. Nor should conduct be legal for some people but prohibited for others based solely on differences in their marital status. Adults have the right to make their own choices about private, sexual behavior without government interference, whether they’re married or not. And to keep it private they ought to be able to rent a hotel room.
SB 11-244 passed the Senate on a vote of 25 to 9, but it was defeated in a House committee. This year, HB 13-1166 passed the House on a vote of 37 to 26 and it passed the Senate 23 to 10. Governor Hickenlooper signed HB 1166 into law on March 22, 2013 in a private ceremony in his office that I alone attended. Before he signed the bill I told him this story and what the bill really meant to me. The phrase “deviant sexual intercourse” has now been eliminated from the Colorado Revised Statutes.