Fornication

Unlawful carnal knowledge by an unmarried person of another, whether the latter be married or unmarried. Fornication is distinguished from adultery by the fact that the guilty person is not married. Four cases of unlawful intercourse may arise; where both parties are married; where the man only is married; where the woman only is married; where neither is married. In the first case such intercourse must be adultery; in the second case the crime is fornication only on the part of the woman, but adultery on the part of the man; in the third case it is adultery in the woman, and fornication (by statute in some states, adultery) in the man; in the last case it is fornication only in both parties. It is criminal intercourse between unmarried persons; Territory v. Whitcomb, 1 Mont. 359, 25 Am. Rep. 740; Neil v. State, 117 Ga. 14, 43 S. E. 435; or it is held to be intercourse between a married or unmarried man and an unmarried woman; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21. Simple incontinence is not punishable at common law; Com. v. Jones, 2 Gratt. (Va.) 555; simple fornication, without issue born, is not an indictable offence; Smith v. Minor, 1 N. J. L. 16; State v. Rahl, 33 Tex. 76; in the District of Columbia; Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308; merely getting an unmarried woman with child is not indictable; but living in notorious fornication is; Lumpkins v. Justice, 1 Ind. 557. In some states it is indictable by statute; State v. Way, 6 Vt. 311; Com. v. Jones, 2 Gratt. (Va.) 555; and where it is there may be a conviction for this offence on an indictment for adultery; State v. Cowell, 26 N. C. 231; 1 Bish. Crim. L. 795. In Pennsylvania it is a misdemeanor for which an indictment lies, and is also a constituent of incest, adultery, seduction under promise of marriage, and rape; Com. v. Arner, 149 Pa. 35, 24 Atl. 83.