Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005), was a decision by the Supreme Court of Virginia holding that the Virginia criminal law against fornication (sexual acts between unmarried people) was unconstitutional. The court's decision followed the 2003 ruling of the U.S. Supreme Court in Lawrence v. Texas, which established the constitutionally-protected right of adults to engage in private, consensual sex. Background of the case Muguet Martin and Kristopher Ziherl were an unmarried couple who had been in a sexually active relationship for two years when Martin's doctor diagnosed her with herpes. She then filed a lawsuit against Ziherl in the Richmond Circuit Court, alleging that he knew he was infected with herpes when they had unprotected sex, knew it was contagious, and failed to inform her. Her complaint claimed negligence, intentional battery and intentional infliction of emotional distress, for which she sought compensatory and punitive damages. The Supreme Court of Virginia had ruled in Zysk v. Zysk, 404 S.E.2d 721 (Va. 1990), that plaintiffs could not recover damages for injuries suffered while participating in illegal conduct. As sex between unmarried persons was criminalized under Virginia's anti-fornication statute, Ziherl filed a demurrer in response to Martin's suit. Judge Theodore J. Markow rejected Martin's argument that the statute was no longer valid after Lawrence v. Texas, in which the U.S. Supreme Court found unconstitutional a Texas law criminalizing homosexual sodomy as an infringement upon the liberty of adults to engage in private and consensual intimate conduct under the due process clause of the Fourteenth Amendment to the United States Constitution. Judge Markow instead believed the fornication prohibition satisfied the rational basis review that Lawrence ruled the Texas statute failed, because the fornication law was reasonably related to the legitimate government goals of protecting public health and encouraging marriage for procreation. Ziherl's demurrer was sustained, resulting in the dismissal of Martin's suit. She subsequently appealed to the Virginia Supreme Court. On appeal, Ziherl argued that Martin lacked standing to challenge the constitutionality of the statute because she was under no threat of prosecution, as the law had not been enforced against consenting adults since the mid-19th century. Invalidation would therefore not impact her liberty but would only allow her to pursue her lawsuit. The court refused to consider this argument, because of the longstanding rule that it would not consider a standing argument that was not first made at the trial court