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
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. . .
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.
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.
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?
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.
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.
Well said Mike A! You hit the nail on the head that is merely a back door attempt to replace civil law with Biblical law.
“The Minnesota Family Council”??? i figure it’s all down hill from here.
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.
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.)
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.
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.’
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I suspect your “guess” is right on target.
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 …
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
.
Yep. Well past time.
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?
What raff, Alan, and mespo said.
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.
I agree. If people need “assistance” to deal with adultery in their marriages, it should be on the civil side, not the criminal side.
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.