Idaho County Fights Teen Sex Using Old Fornication Law -- Unwed Mothers, Boyfriends Key Targets

------------------------------------------------------------------ OFFICIALS in a rural county near Boise make no apologies for prosecuting a half-dozen young people under an old state law outlawing fornication. But critics say teens are being hauled into court simply for having sex. ------------------------------------------------------------------

Meet Amanda Smisek. She lives in the orchard town of Emmett, Idaho. She is 17, a high-school senior, part-time waitress and the town's most famous fornicator.

Famous in this case means only that she is the hot topic of conversation in this community of 4,600 nestled in the patchwork hills west of Boise. Smisek recently was convicted of criminal fornication, a misdemeanor, under an old state law prohibiting sex between unmarried people.

When first charged with the crime this past spring, she did not know the meaning of "fornication."

"My mother and I had to go to the library to look it up," she said. Upon reading the definition, Smisek recalled her reaction:

"Oh, that."

She had been doing that for months without knowing she was breaking the law. In all probability, countless others in Gem County over the years have been doing that without knowing about state statute 6604. The law, enacted in 1921, had been forgotten for generations - until this year.

Alarmed by the rising numbers of young, unwed mothers on the welfare rolls, Gem County Prosecutor Doug Varie and Sheriff Mark John decided to use the old law as a new tool to discourage teenage sex.

A half-dozen people, including Smisek and her boyfriend, Chris Lay, 16, of Boise, have been charged under the statute, which holds that "any unmarried person who shall have sex with an unmarried person of the opposite sex shall be found guilty of fornication."

Washington state does not have a fornication law.

"What kind of message would we send if we tolerated sex between children?" asked Sheriff John. "We would be saying, `We condone your promiscuousness, and if you get pregnant and you're 14 years old, we the citizens will pay for your mistake.' That is the wrong message to send."

Critics say using the law in this manner also is sending a wrong message. "You're basically hauling a kid into court for (having sex)," said Will Butler, the public defender who represented Smisek.

"Yes, any unwed mother is a problem for society, but can we really deal with it in this way? I don't see how," said Emmett Mayor John LaFordge.

"How are you going to determine who has fornicated - walk up and down the street asking pregnant women if they're married or not?"

Jack Van Valkenburgh, a Boise representative of the American Civil Liberties Union, said Gem County officials are sticking their noses where they do not belong. He called it "the worst kind of Big Brother run amok."

Sheriff John, however, said criticism has come almost exclusively from the news media and a handful of lawyers. The majority of residents in the county, he said, support the use of the law.

"I believe 99 percent of the citizens in Gem County do not condone sexual activity between kids under 18, and, personally, I would say 99 percent of the citizens do not condone sexual activity among unmarried people, period," John said. "There are high moral standards in Gem County."

By national standards, Gem County's teen-pregnancy problem is not so bad. The rate is about 80 pregnancies per 1,000 population - among the highest in Idaho but only about three-fourths of the national average.

The county is not out to crucify anybody, John said.

Smisek, for example, was given a suspended sentence, ordered to finish high school and attend parenting classes.

Her boyfriend pleaded guilty to the misdemeanor charge, which carries a maximum penalty of six months in jail and a fine of $300. He was handed three years of probation, 40 hours of community service and a $10 fine.

Teenage parents on public assistance have been the primary targets of the law. The ordeal began for Smisek when she applied for pregnancy-related state medical assistance. A welfare official notified the Emmett Police Department, which then referred the case to the county prosecutor.

In April, while at school, Smisek was summoned to the police department and questioned about her pregnancy. She was seven months pregnant at the time. A few weeks later, she was officially charged with criminal fornication.

At her May trial, Smisek pleaded not guilty, claiming she was being unfairly targeted; many other girls she knew had gotten pregnant without being prosecuted. The court found her guilty. Smisek's mother, Jody Smisek, a nurse's aide, said the family would have appealed but did not have the money or energy for a court fight.

"The whole thing makes me mad," said Amanda Smisek, whose son, Tyler, is 6 weeks old. "The prosecutor was really rude against me. He called me an irresponsible teenager. He said I didn't plan to take care of my baby. Well, I'm taking care of my baby just fine, and I plan to be a good mother."

Of those charged with the crime, Smisek has received the most attention because she has been the most vocal, granting interviews to The Wall Street Journal, "Dateline NBC," CBS' "48 Hours" and The London Times.

Sheriff John said it's fine to disagree with the law, but it's not right to lionize people like Smisek.

"The news media is giving her (Smisek) notoriety that she flat does not deserve," he said. "She broke the law and now wants the citizens of Gem County to pay for it, and you all make her out to be a hero. She's no hero."

Critics say county officials have been taken aback by the public scrutiny and may think twice before charging other youths, but John said he is undaunted.

"I'm not going to go door to door," the sheriff said, "but in every case that I hear about in which there is proof of sex between minors, I will definitely prosecute. You can count on that."