Criminal Adultery: States Ponder The Continuation of Puritanical Laws

Today’s column is on the continued criminalization of adultery in states across the country. It is a critical battle over morality legislation in the United States.

Across the country, some social conservatives are fighting for what they view as a critical article of faith: criminal adultery laws. In the U.S., in the year 2010, people can still be prosecuted for breaching their marital vows. The laws are some of the last remnants of our Puritanical past, where infidelity was treated as not only a marital but also as a criminal matter. While the laws have been challenged as unconstitutional, many people are resistant to the idea of removing such “morality crimes” from our books.

In New Hampshire, for instance, legislators are trying to repeal a 200-year-old adultery law that is widely viewed as unconstitutional. Social conservatives, however, insist that such laws are needed to back up moral dictates with criminal sanctions. A 1997 poll showed that 35% of Americans believe adultery should be a crime, and similar efforts to decriminalize adultery have met with opposition in states such as Illinois and Minnesota.

For many civil libertarians, it is an equally important moment when our nation can finally move beyond laws that require citizens to comply with the moral dictates of their neighbors.

About two dozen states still have criminal adultery provisions. While prosecutions remain rare, they do occur. And beyond the criminal realm, these provisions can be cited in divorce proceedings, custody disputes, employment cases and even to bar people from serving on juries. Though someone such as Tiger Woods might not be prosecuted, these laws could be cited in any divorce proceedings to show not just infidelity but also possible criminality in his lifestyle.

Lingering Puritan influence

When the Puritans came to this land, they left a country where the English treated adultery as largely a civil and personal matter. The Puritans wanted to create a society where moral dictates were enforced by harsh corporal punishments.

Nathaniel Hawthorne’s The Scarlet Letter accurately portrayed colonial America under such criminal laws enforcing religious values. There was extensive entanglement between church and state, with adulterers punished for their immorality. In 1644, Mary Latham and James Britton were hanged for their adultery in Massachusetts.

Ironically, England at the time was far more tolerant of adultery as a personal matter. Most of these early laws were framed in sexist terms: protecting a husband’s exclusive “rights” over his wife as virtual property. Besides death, other punishments included branding, whipping and a variety of shaming punishments.

Civil libertarians have long opposed adultery laws as a version of the “tyranny of the majority” over the values of citizens. Many thought this debate was closed after the 2003 decision of the Supreme Court in Lawrence v. Texas, which struck a Texas statute criminalizing consensual sodomy. They underestimated the political resistance to the idea of making infidelity a purely civil matter.

In Minnesota, for example, state Sen. Ellen Anderson in December made the modest suggestion that the state repeal laws that make it illegal for a married woman to cheat on her husband and make it a crime for single women to have sex at all. The response of the Minnesota Family Council (MFC) was to call for the law not to be repealed but strengthened. Make it a crime for men, too, the group argued.

Tom Prichard, MFC’s president, said these laws are essential because “they send a message. … When you are dealing with a marriage, it’s not just a private activity or a private institution. It’s a very public institution. It has enormous consequences for the rest of society.” The law is still on the books.

Likewise, when the Illinois legislature last year made a comprehensive set of changes to update the state’s laws, it notably kept the criminal provisions for adultery and fornication. In addition to roughly half of the states, adultery remains a criminal offense in the military, where prosecutions occur regularly.

In these state and federal systems, adults who cheat on their spouses are still deemed presumptive criminals and face the potential of a criminal charge. Just a year after the Lawrence decision, John R. Bushey Jr., then 66, the town attorney for Luray, Va., was prosecuted for adultery and agreed to a plea bargain of community service. A year later, Lucius James Penn, then 29, was charged with adultery in Fargo, N.D. In 2007, a Michigan appellate court ruled that adultery can still support a life sentence in that state.

The insistence on keeping these crimes on the books is an affront to our Constitution — just as it would be an affront to keep anti-miscegenation provisions criminalizing interracial marriages. We should use this moment to establish a bright line between personal and public offenses. The Puritans had it wrong when they saw the law as a way of enforcing their religious values. While we all condemn adultery, it is a personal failing and an offense against a spouse — not a matter which should require a legal judgment.

A matter for couples

Some individuals learn about these provisions for the first time in divorce and other cases — where the criminal character of the alleged conduct can be cited to justify penalties. Of course, adultery is and should remain grounds for a divorce — but without being a crime. Adultery is a clear violation of the contractual obligation between a married couple and rather obvious evidence of a loss of intimacy and fidelity.

While the Puritans had many redeemable qualities, their use of colonial laws to execute or beat or brand people for immorality was a savage tradition. This country has matured to the point that we can put away criminalized moral codes and leave such matters to individual citizens, their families and their respective faiths. It is time to allow couples to police their own marriages.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

USA Today: April 26, 2010

42 thoughts on “Criminal Adultery: States Ponder The Continuation of Puritanical Laws

  1. A big Amen to you Prof. Turley. To imagine that we can have laws in Arizona that makes it against the law to “look” like an illegal and these laws that make adultery a crime in the year 2010 is disturbing. The adultery crimes are really religious tenets forced on all of us and must be stricken from the books.

  2. I agree. If people need “assistance” to deal with adultery in their marriages, it should be on the civil side, not the criminal side.

  3. Religious separatists who enforced their dogma with an iron fist, the Puritans may, indeed,have had some redeeming qualities, though few spring to mind. It is worth remembering that Mussolini is reputed to have made the trains run on time.

  4. My guess is that those who favor keeping these ridiculous laws on the books, as well as those who favor stronger ‘moral’ laws, are wholeheartedly against government infringing upon their ‘freedoms’ when it comes to their guns, bibles, healthcare, etc., and are anxious to ‘take their government back.’

    Let’s have some cake and eat it, too, ‘mkay?

  5. This law is dumb, because this law only applies where people love fun, parties, sex and girls. American males are homosexuals, and american girls are lesbians. People in USA hate loving and sex. People in USA are machines not humans.

    I am moving to Venezuela, Uruguay or Cuba. I will escape this hell of USA


  6. Oh, come now, these laws have an excellent purpose — making Republicans like Michigan’s AG Mike Cox look even more ridiculous and hypocritical for their adulterous affairs. Cox was forced to pretend that he didn’t realize he’d committed a crime when he confessed his affair a few years back …

  7. vlf2112

    My guess is that those who favor keeping these ridiculous laws on the books, as well as those who favor stronger ‘moral’ laws, are wholeheartedly against government infringing upon their ‘freedoms’ when it comes to their guns, bibles, healthcare, etc., and are anxious to ‘take their government back.’


    I suspect your “guess” is right on target.

  8. Wouldn’t affect me.
    I’m not an adulterer.
    I’m the kind of weirdo that believes that when you make a promise you should keep it. Isn’t that what marriage vows are – a set of promises.
    But maybe I also had the good sense to choose the right person in the first place.
    Feeling really smug today.

  9. This one’s giving me pause.

    While I see no cause for a law that forbids consensual sex outside of marriage, I see no cause because no one is hurt. By contrast, someone IS hurt when parties engage in adultery: the cheated-on spouse. An oath was sworn, and I can’t find anything inconsistent with current law that says that aspects of that oath cannot be enforced criminally given the harm to the other party. Fraud, after all, is illegal, and it’s not too far off. (One could also argue the state is harmed as well, since it endorsed the oath and has been assuming you’ll abide by it while it provides certain benefits.)

    Granted, to enforce against the wife but not the husband (or vice versa!) is a clear case of EPC violation. But someone help me find how the concept itself has no place in modern law, other than “it’s old”? (It seems that precisely BECAUSE this is the 21st century, and you no longer have to marry to have sex, live together, or even raise a family, we shouldn’t have to shy away from a little more enforcement when someone DOES make such a promise only to break it in such a traumatic manner.)

  10. ShireNomad, adultery is a broken promise. But a broken promise is not fraud, unless the promise was made with fraudulent intent, i.e., a positive intention not to keep the promise at the time it was made. Therefore, it is more akin to a breach of contract, a purely civil matter. Moreover, there are only very limited circumstances in which fraud constitutes a crime. In the case of marriage, an intention not to live up to the marriage vows when they were made would be grounds for annulment, a form of contract rescission. The point is that criminalizing broken promises serves absolutely no societal interests. One needs to examine the motives of those who propose such legislation, at which point it is clear that the proponents are advancing a purely religious agenda, and a minority religious agenda at that.

  11. Mike A. I agree with ShireNomad. You say:

    “The point is that criminalizing broken promises serves absolutely no societal interests. One needs to examine the motives of those who propose such legislation, at which point it is clear that the proponents are advancing a purely religious agenda, and a minority religious agenda at that.”

    Which vows, made in both civil and religious services, are simply promises that can be broken? The presidential, military, congressional, and judicial vows to uphold the constitution are, I believe – you can correct me on this if I err, vows that, when they are broken, are criminal offenses.

    These are not not new laws being proposed in order to promote a particular relious view, as you suggest, but are laws that have been on the books for many years. They were advanced by what may have been a purely religious agenda, and, from what we know of the original lawmakers, they were religious and not in the minority at that.

    On the other hand they may have been thought to be needed, in addition, to protect the spouses and children from the results of adulterous acts (especially the women who had few rights in the marriage contract).

    Such non-religious considerations still apply today, even more so since more and more serious diseases can be transmitted to both spouse and children.

    Nevertheless, a vow is an oath and not a promise.

  12. Buckeye,
    Your attempt to couch these laws as non-religious is being intellectually dishonest. The whole idea of Professor Turley’s article is that these old and unnecessary laws are remnants of our Puritanical past. They were designed to maintain the morals of religious thought at the time and have no place in our society today.

  13. rafflaw

    That’s why I said “in addition”. No doubt they were originally instituted because of religious beliefs, but religious beliefs are not ALL just hot air. Often they have practical reasons for being – as this one does – as do those that are prohibit murder, robbery, bearing false witness, etc. Legislating morality is a tricky business – ask Wall Street.

    I agree that laws against adultery have little meaning today, since they are rarely applied, and should probably be taken off the books if they are not going to be enforced.

    If a spouse can now sue for mental or bodily harm resulting from adultery, they are obviously no longer needed. Can they?

  14. Don’t mate the “STATE” Bro’.

    Marriage has essentially been destroyed in America by legislation. It is no longer marriage it is a license
    to steal your children, your property, and your liberty.

    Today marriage places the bride and groom voluntarily
    under the jurisdiction of the legislature, which is
    full of mostly criminal thug lawyers and their ilk.

    The really comical thing is that the legislature requires
    a marriage license to marry, and a dog license to own a dog, yet
    the criminal thug legislators require no license to legislate.

  15. They got me for bestiality.

    The law and the Bible said that both the man and the animal had to be executed.

    They hanged me.

    Fluffy got a pardon.

  16. I can’t totally disagree with the premise. . .

    I don’t give a fig for the “moral” justification – morals are what other people try to put on you. . . when they should be paying attention to their own business.

    On the other hand, a marriage is a legal contract. . . and adultery can then be considered a “breach of contract.” In other agreements, violating the contract can bring civil/criminal penalties. . . much more than just “a form of contract rescission.” Penalties for breach of contract can include financial as well as criminal sanctions. . .

  17. Buckeye and J.Shaffer: A thorough response to your respective comments would require pages because you are both painting with pretty broad brushes. But a few things need to be noted to at least clarify the arguments.

    First, there is a difference between marriage as a religious sacrament and the union between a man and woman given recognition in the law. Many arguments get nowhere because these two concepts are used interchangeably. Indeed, groups such as the Minnesota Family Council intentionally blur that distinction as a matter of policy. There is a strong movement in this country to delegitimize the doctrine of separation of church and state by promoting legislation which incorporates particular religious doctrines into civil law. Efforts to either retain ancient adultery statutes or to reintroduce them are examples of this trend. But in truth, whether my wedding takes place in St. Patrick’s Cathedral or before the nearest notary public (I have performed weddings myself in that capacity) is wholly without legal significance. As long as certain prerequisites are met and the proper paperwork is filed, the marriage is sanctioned by the state. The result is that the newlyweds have acquired a legal relationship with a set of rights and obligations defined within a specific statutory framework. Should the marriage become broken for any reason, the law determines the consequences with respect to the division of property, liability for debt and custody and support of children.

    From a legal standpoint, the “sanctity” of marriage has no more meaning than the “sanctity” of any other contractual relationship. We need to remember Oliver Wendell Holmes’ observation that “The only universal consequence of a legally binding promise is that the law makes the promisor pay damages if the promised event does not come to pass.” The nature of the damages depends upon the nature of the contract. As I noted, when the marriage contract is terminated by divorce, statutes specify the damages. If I breach a contract to sell property, I may be compelled to either pay damages or, in many instances, to perform by conveying the land.

    But neither the breach of a marriage contract nor of a contract for the sale of land is a criminal event, unless it is accompanied by some distinct act which is criminal in and of itself irrespective of the breach. For example, should I announce to the buyer that I will not proceed with the transaction and emphasize my determination with a blow to his face, a prosecution for assault and battery would likely follow. Likewise we prosecute crimes committed by one spouse against the other, but the crime is not defined by the legal relationship between the victim and the aggressor (in most instances).

    The law does not regulate the intimacies of the marital relationship for the same reason that it does not regulate the intimacies of a friendship. We recognize as a society that the emotional and psychological elements of a relationship between two people are best left to their own definitions as a matter of privacy and respect. In other words, certain things are none of the business of the rest of us.

    In my view the prosecution of an individual for having sex outside of the marriage relationship is of no more benefit to the public welfare than the prosecution of a woman as a common scold, although I confess that I occasionally fantasize about the possible revival of the latter offense whenever I listen to Sarah Palin or Michele Bachmann. I do not perceive it to be the duty of society to criminalize an act simply because a segment of the population should find it morally reprehensible. To the contrary, I believe we are already an over-criminalized society.

  18. As I said. . . I don’t give a fig for the “morals” or the “sanctity” argument. . . those are personal things outside the realm of Government. . .

    I’m looking at it from a purely contractual direction – monogamous sexuality is part of the marriage “contract,” for the most part. . . of course, there are people who have “open” marriages where monogamy isn’t part of the deal. . . otherwise, fidelity is part of the contractual agreement.

    Just as an actor, for example, can be sued for “damages” over a breach of contract, so should a breach of the marriage contract be actionable – not criminal, but certainly civilly actionable.

  19. J. Shaffer: “Just as an actor, for example, can be sued for “damages” over a breach of contract, so should a breach of the marriage contract be actionable – not criminal, but certainly civilly actionable.”

    Isn’t divorce the civil remedy?

  20. Mike A.

    Then do you perceive it to be the duty of society to decriminalize an act simply because a segment of the population do not find it morally reprehensible? Akin to smoking pot or selling videos of animal torture or allowing corporations to be considered a person as far as political freedom of speech?

    Adultery has been a crime, often punishable by death, from the stone age (even before marriage vows) right through Henry VIII’s wives (“divorced, beheaded, died, divorced, beheaded, survived”). And the Puritans were only a century later – (we are only a couple of centuries later than that).

    Our times make criminalization of adultery seem foolish, but should the pendulum swing back in another couple of centuries, they can recriminalize it then, I guess. No harm done.

    P.S. What in the world would lead you to believe Ms. Palin and Ms. Bachmann could be defined as “common” scolds?

  21. Under those laws, couldn’t they prosecute Goldman Sachs, Citi, and all the other banks? After all, they pretty much f**kd the entire country several times over, didn’t they?

    And I’m sure it was not consensual.

  22. Three middle eastern religions (judaism Old Testament, Islam and Christianity Old and New Testament) are all religions that are paternalistic, relegate women to near slaves and worship a male god. Virginity and chastity are revering denying our emotional, psychological and physical needs for sex and intimacy. Women pay the highest price for all the social taboos. I think the time has come for the women of the world to call see God’s feminine side as a she and reject the dominance of male religion and male political systems that discredit their validity and needs.

  23. Surely you have enough criminals in the USA- the biggest population incarcerated in the world, many for private matters eg drugs, abortion and fake “terrorist” crimes like sending sox to AlQaida. Keep crimes as real crimes, but of course that would include your leaders taking you into illegal wars and killing millions of already-born people.

  24. Most people believe in the law against adultery until they are the ones caught with their shorts down. Ask Mike Cox the Republican Attorney General of Michigan. BTW, it is still against the law, he committed it and no one would prosecute him. And he is running for Governor.

  25. No one would prosecute Mike Cox as it could never be proven in what Jurisdiction the criminal adulterous act occurred. I think that he should have been charged by every county of that state and let him defend which one. But by then the 1 year SOL had run.

  26. Unless you have become the victim of a spouse that has routinely had an adulterous affair with his ex-wife, you have no idea what pain it brings to a wife that dearly loves her husband.
    The ability to go after this in a Civil Law Suit, not just against him… but I’d like to go after his ex as well.
    I believe it is time that people start becoming responsible for the promise of their marriage vows but also in legally breaking them. Next week will be my 18th wedding anniversary, and he will be spending it with his ex wife.
    I am also his business partner. This entire poor judgement in behavior is not only affecting me personally, but our four businesses as well.
    I am limiting all the details, but she is by no means a better person than I in any manner. We never had children together.
    He was diagnosed as a sociopath. So he does not function with a conscience.
    I made a decision to file for personal bankruptcy in order to help him and the companies only to discover that these choices were influenced by his “lies of omission” And, I can’t file for divorce until after my bankruptcy.
    It gets much more convoluted than this…
    I think he should have to pay $500.00 for every nite he’s lived at her house. We have a perfectly huge home that is just sitting empty in NY while I am dealing with issues at our AZ home.

  27. Lorinda:

    Yours is a sad story of a faithless spouse. While compelling on an emotional level, it doesn’t justify the use of public resources and energy to prosecute your husband or his paramour. You have civil remedies which amply protect your financial injuries, if not your battered heart. No one approves of a cheating spouse or sociopathic behavior — in fact, it’s reprehensible — but that doesn’t mean the State must incarcerate or fine someone for it.

    I wish you well as you move on in life.

  28. My boyfriend is married. I knew this up front. But his wife and he haven’t lived together or been intimate in 3 yrs. Now that he is finally filing for divorce, she is screaming adultry, a ploy to try to get alimony. She wants nothing to do with him. She is all about money. She now wants me prosecuted. I did not steal her husband, she threw him away. There are a lot of factors to take into consideration before you start passing judgement. I feel it is unconstitutional and is not a crime. It is solely a moral issue.

  29. Adultery should be criminalized fair and square. Look at our current situation in the U.S. and the world–adultery persists and continues to grow as a festering sore. If we leave it unattended like it already is, adultery itself will continue to grow and grow.

    Hence, this is why I believe a law should be enforced and set in place. Sure, it may be a “moral” offense, but as what a few of the other commenters replied, marriage IS a contract and if it is broken, consequences should take their course.

  30. I personally think that adultery should be treated as a crime. If we live in our country with the freedom we have right now, it’s because of our great military. They still have to live by this law and the military does still Court Marshall for Adultery. Why should we not have to live by the same standards our soldiers do? After all, they are the reason we have our freedom!!! Besides, if you don’t commit adultery you have no reason to worry about this law. When I married my husband, I meant each and every word I said. I would never cheat on him, and I will never agree with others doing it either. This is a quote from on George W Bush, is he correct? THE UNITED STATES IS A CHRISTIAN NATION FOUNDED UPON CHRISTIAN PRINCIPLES.

    So do you have morals and Christian principles???? YOU SHOULD!!!

  31. Some men use vulnerable women to gain a fault divorce through adultery. I was one such woman. At a low point in my life as a result of excessive child abuse I suffered (and do now) from Borderline Personality Disorder leading to severe depression and suicidal desire. Under these laws I could be branded a criminal and sent to prison for life??? He had asked for a divorce but his wife denied it. I had nothing to do with this. He needed adultery to get a Christian divorce so he moved on to me, an acquaintance in severe emotional distress. I was sited as correspondent (she got her pound of flesh) as was the unborn child I carried, created through fear, bullying and intense emotional intimidation. Truthfully, he didn’t need adultery: he needed a pregnancy to get the divorce. I’ll never forget the day he came back to the house and was disappointed we were still alive. No one helped me escape him. Three years after having the baby, the woman from the next bed ran up to me in the street and blurted out that if I wanted to go to an abused woman’s shelter she’d go with me and that she’d had lost sleep and worried for 3 years about me. She’d seen him for 10 minutes when I left hospital. Yet I’m the ‘criminal’ left destitute holding the baby branded with a scarlet A by everyone, particularly by the ex-wife he’d never loved who knew I’d not been involved his initial divorce desire. He didn’t want me or her, all along he wanted someone else but wouldn’t put her through a divorce siting. For the law to assume that all affairs do not involve vulnerable women being brutally exploited by callous and cruel men determined to get a divorce regardless of the cost to the women they use, is just wrong. And some wives are too stupid to face the reality of the man they marry, the whole marriage is a fantasy to them they make love notes on. This is why morality laws should not have criminal intent attached to them. You cannot judge inner perceptions. In our situation: his wife’s petulant fantasy, his wicked ulterior motives only proven through time, or my illness. There is no moral righteousness in continuing abject cruelty to a second victim.

  32. Adultery is a killer – emotionally – psychologically – physically – perpetrating at least 30% of all murders upon women, conveniently tabbed as intimate murders, and ~ 8% of all murders upon men. It relegates children to single family homes and tremendous disadvantage, where the boys are 12 times more likely to experience prison in their future, and the girls 3 times more likely to experience teen pregnancy than if they both lived with their nurturing biological parents. Adultery is a very dicy domestic call for any patrol officer – ask one – Its a devious, irresponsible selfish act that enables the transmission of STD, all harmful, many incurable, and some with fatal repercussions. It becomes in the end a hugh public cost and it is therefore definitely within the publics interest to curtail it through public prosecution, generating at least meaningful fines, and incarceration for repeat offenders. And I understand it has caused at least one otherwise intelligent legal professor at a very astute University to loose his grounding and waste educational resources pandering to the perversion.

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