March 25, 2000  NYT
       Unmarried and Living Together,
        Till the Sheriff Do Us Part
    By JIM YARDLEY

            PERALTA, N.M., March 23 -- Richard Pitcher and
            Kimberly Henry began their courtship in January
        with a lunch that led to dinner that incited three dizzy
        weeks and talk of marriage. But his second divorce
        was still fresh, and her first marriage had been a
        disaster, so they decided to try a road test of sorts.
        They moved in together.

        He cleaned out a dresser for her clothes, and she
        brought her stereo and her books, and everything
        seemed to be progressing nicely until the summons
        arrived in the mail charging them with violating Article
        30-10-2 of the New Mexico criminal code, otherwise
        known as unlawful cohabitation. First offenders get a
        warning; repeat offenders could spend six months in
        jail.

        "I just couldn't believe it," Mr. Pitcher said. "I was
        shocked."

        In many places these days, living together carries less
        of a moral stain than smoking, but in New Mexico it is
        against the law. Few New Mexicans seem to realize
        this, and even fewer of the state's law-enforcement
        officials have ever chosen to uphold the statute,
        perhaps for lack of jail space. But one person familiar
        with the law is Mr. Pitcher's second ex-wife, and in
        February she filed a complaint.

        In New Mexico, the statute is a reminder that state legal
        codes are like old attics: almost anything can be in
        there and cleaning them out is never easy. In Oklahoma,
        for example, a person can be sentenced to 30 days in
        jail for "injuring" fruit, melons or flowers. In North
        Carolina, swearing remains prohibited in all 100
        counties -- except 2 at opposite ends of the state, for
        balance.

        The National Conference of State Legislatures has no
        details on how many states have laws against
        cohabitation, but there are at least a few. In Arizona,
        the state Legislature rebuffed efforts last month to
        repeal its own 80-year-old cohabitation law after a
        committee chairman described it as a bulwark against
        the "decaying fabric of society." Massachusetts, on the
        other hand, chose to risk decay. In 1987, it repealed its
        ban on "lewdly and lasciviously associating and
        cohabitating without the benefit of marriage." The law
        had been on the books since 1784.

        These laws are often just statutory reminders of bygone
        eras until, of course, a person is charged with breaking
        one. That rarely happens since officials regard such
        laws as unenforceable. About a decade ago, a sheriff in
        southern New Mexico announced plans to enforce the
        cohabitation law until an irritated citizenry convinced
        him otherwise.

        Yet Charles E. Knoblauch, a lawyer representing Ms.
        Henry, noted that private citizens in New Mexico have
        considerable latitude in filing misdemeanor criminal
        charges. Under state law, a person need only swear out
        a complaint with the police and pay a fee to charge
        someone with a misdemeanor. No police investigation
        is required.

        "For $25, you can make someone's life a living hell,"
        Mr. Knoblauch said.

        He said New Mexico code included one law
        prohibiting improperly singing the state or national
        anthems in public while another charges any registered
        members of the Communist Party with a felony if they
        fail to register with the secretary of state.

        The case of Mr. Pitcher, 35, and Ms. Henry, 31, began
        in the middle of February, after she moved into his
        white mobile home in this small town about 20 miles
        south of Albuquerque. Mr. Pitcher and his former wife,
        Vickie Jenkins Avants, had shared custody of their
        5-year-old daughter since their October divorce, but
        Ms. Henry's arrival roiled Ms. Avants.

        "It's a morality issue," said Ms. Avants, 36. "We're
        spending six days a week trying to teach moral values,
        and the one day a week she's with her dad, he's got that
        woman moved in."

        Ms. Avants conceded that she herself was "not perfect."
        In January, she married for the fourth time, and she and
        Mr. Pitcher lived together for six years before
        marrying. But after becoming a born-again Christian,
        Ms. Avants said, she has sought to change her life and
        provide the proper moral climate for her daughter. She
        described Ms. Henry as a good person, but she did not
        seem likely to retract her complaint.

        "It's a law on the books," she said. "Whether they like it
        or not, it's still a law."

        Ms. Henry, who is director of social services at a
        nursing home, said she and Mr. Pitcher plan to marry in
        June. They have a bedroom decorated with stuffed
        animals for Mr. Pitcher's daughter and say Ms. Avants
        should not be able to dictate how they live.

        "If I get married, I take the vow very seriously," Ms.
        Henry said. "I truly believe you don't really know
        someone until you get thrown in together."

        Besides, she said, if the police enforced the law, which
        was enacted in 1963, "the whole state would be in
        jail."

        There are no official statistics on cohabitation, but
        enforcing the law would probably require a new prison
        construction program. In an editorial criticizing the
        failure of the Legislature to remove such laws from the
        books, The Albuquerque Journal described
        cohabitation as "more common than speeding" and said
        enforcing the law "would bankrupt the criminal justice
        system." The couple will be arraigned before a local
        magistrate on April 4, and Mr. Knoblauch and his
        co-counsel, William J. Cooley, plan to fight the
        constitutionality of the law on the grounds of "freedom
        of association."

        But such a legal fight may not be needed. Michael
        Runnels, the local district attorney, said very few
        citizens filed criminal complaints or were aware that
        they could. He called the unlawful-cohabitation statute
        "weird" and predicted that his office would find a legal
        avenue to dismiss the case.

        "You can't have a 19th-century criminal code and have
        it survive into the 21st century and have it make any
        sense," Mr. Runnels said.

        Reached on his cell phone while ordering lunch, Mr.
        Runnels, who is running for Congress, said he did not
        know how many unmarried people lived together in his
        district, but he predicted that "the cohabitation vote"
        would outnumber those in favor of the law.

        Asked if he or his lunch companions had ever violated
        the statute, Mr. Runnels polled his table, which
        included a former district judge, a former state senator
        and another elected official.

        "Everybody's taking the Fifth," he said.