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
"I just couldn't believe
it," Mr. Pitcher said. "I was
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
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 In 1987, it repealed its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
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
"For $25, you can make someone's
life a living hell,"
Mr. Knoblauch said.
He said New Mexico code included
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
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
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,"