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