Long after criminal laws have lost their vigor in the context for which they were drafted, they may rise again elsewhere. The American legal system has yet to develop a coherent policy delineating when or if historically unenforced penal statutes can be invoked in non-penal contexts. This issue is particularly evident in cases where the relevant laws are caught between shifting moral sentiments. Fornication, for example, remains illegal in many states,' but it is rarely prosecuted. Should one of the participants in this criminal act contract a sexually transmitted disease and sue her partner in tort, however, these disused statutes may be invoked under the clean hands doctrine to bar recovery. There is a growing body of ill-considered, contradictory case law regarding the legitimacy of such non-criminal invocation of profoundly disused criminal laws. The lack of a coherent approach to secondary applications of disused laws warrants fundamental consideration of the issue rather than the piecemeal attention it has received. Academics have grappled extensively with issues stemming from the renewed enforcement of disused criminal laws, which I shall call primary applications. At the same time, however, commentators have virtually ignored a potentially larger issue: the permissibility of what I shall call the secondary application of these laws in civil, family, and other non-criminal actions. Primary and secondary applications differ in fundamental ways. The unique challenges that secondary applications pose must be addressed. This Note argues that secondary applications of a disused law are unjust and should be permitted only when the possibility of primary applications of that law persists. In the absence of any primary applications, the courts should be able to bar secondary applications with a doctrine I advance under the name of conditional desuetude. In Part I of this Note, I identify the important phenomenon of secondary applications of unenforced penal statutes. Oscillating between giving full force and no force to disused laws in secondary applications, judicial decisions betray a lack of any consistent doctrine that acknowledges the intrinsic link between the enforcement history of a criminal statute and its secondary usage. In Part II, I explore the nature of this link and argue that roughly contemporary prosecutions under a criminal law ought to be a prerequisite of its application in any non-criminal form. A profoundly disused criminal law is of uncertain legitimacy. Such uncertainty should, at minimum, relax the gravitational pull that the disused law exerts through secondary applications. The modification of an individual's rights based on legally obsolete statutes invariably works injustice. Thus, in Part II, I argue that the most viable protection against this injustice is recognition of a modified desuetude doctrine: conditional desuetude. Under conditional desuetude, nonenforcement of a criminal law would preclude its use in secondary applications. This new doctrine can resolve the secondary usage problems of obsolete legislation that would otherwise defy direct constitutional challenges. At the same time, conditional desuetude escapes the separation of powers issue that plagues application of the traditional doctrine of desuetude. Conditional desuetude does not require the courts to encroach upon the purely legislative sphere.
Greene, Hillary, "Undead Laws: The Use of Historically Unenforced Criminal Statutes in Non-Criminal Litigation" (1997). Faculty Articles and Papers. 72.