Gary Oliverson - the West Valley police sergeant suspended without pay two years ago for sexual misconduct with two women members of an Explorer post - has filed suit to overturn the Utah fornication statute.
Oliverson is one of four West Valley officers suspended without pay in September 1986 for sexual misconduct. In addition to the suspension and a reprimand, he was the target of an attempt by the Peace Officer Standards and Training Council to have his officer's certification revoked or suspended.According to documents filed along with the U.S. District Court suit, he admitted having sex with two adult members of Explorer Post 955, which was sponsored by the West Valley Police Department. He was married at the time, and was off-duty when the events took place.
Brian M. Barnard, Oliverson's lawyer, maintained in a brief that the individual "does have a constitutional privacy right to engage in sexual intercourse of a private, non-commercial, non-prostitutional, heterosexual, consensual nature with another adult to whom he is not married."
Federal Court decisions "hold that an individual, married or not, has a fundamental right to decide, free from governmental intrusion, whether to bear or beget a child. Logically implicit in their rulings is the right to engage in sexual intercourse to effectuate this decision."
Utah's 1953 fornication statute makes it a crime for people not married to each other to engage in intercourse. But Barnard claimed to make such a distinction between married and unmarried couples amounts to a violation of the Constitution's equal protection amendment.
At one point, Barnard's brief continues, "A brief reading (and perusal of the pictures) of any high school biology textbook will point out the anatomical differences between women and men."
At another point, he declared, "If the state wanted to blindly support the institution of marriage, it could outlaw divorce.
The brief admits that some of its statements are said half in jest.
A response by Utah's chief deputy attorney general, Paul M. Tinker, says, "The statutes . . . are constitutional and in no way have deprived or will deprive plaintiff of a constitutional right."
Tinker asked that the suit be dismissed.