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Archaic Florida Law Prohibiting Cohabitation Draws Criticism

September 1, 2011

A recent legal meme attracting a lot of main stream media attention is Florida law that prohibits an unmarried man and woman from living together.

Section 798.02 of the Florida Statutes literally provides:

Lewd and lascivious behavior.—If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Cohabitation laws are on the books in many states, but they mostly go unenforced. As this 2007 article points out, there are also other silly laws on the books, but prosecutors can decide not to prosecute them. The four year old article also talks about the cohabitation law – so this is nothing new.

To be in violation of the criminal statute, the man and woman must lewdly and lasciviously cohabit, not just cohabit. The distinction is tenuous, and leaves a lot (perhaps too much) in the hands of prosecutors. For example, historically, these laws could be used as a means to prosecute homosexual couples.

State Rep. Ritch Workman (R, Melbourne) wants to repeal the cohabitation law and other defunct provisions. The effort will probably fail, though, since lawmakers likely don’t see it as a priority, and Governor Scott may veto anything that looks at all friendly to the LGBT community.

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