Adultery in the United States. The term adultery refers to an extramarital sexual relationship between a married couple and a third party who is not part of the marriage. A fault divorce includes adultery as a reason for divorce.
A court may also consider adultery as a factor in property division, alimony, or child custody in some states in addition to obtaining a divorce.
Laws against adultery in the United States
As one of the few industrialized nations to criminalize adultery, the United States is one of the exceptions. Each state has its own laws concerning adultery. Most U.S. states (especially in the South and Northeast) prohibited fornication, adultery, and cohabitation until the mid-20th century. Over the years, courts have struck down a number of these laws as unconstitutional or abolished them altogether.
Adultery is rarely a criminal offense under state law. In some cases, the federal appeals courts have ruled inconsistently on whether such laws are unconstitutional (especially after the Lawrence v. Texas Supreme Court decision of 2003), however the Supreme Court has not directly addressed this issue as of 2019.
A criminal offense, adultery is a crime in 16 states as of 2022, but prosecutions are rare. The law against fornication and adultery was abolished in Pennsylvania in 1973.
Recent decriminalization of adultery in states includes West Virginia (2010), Colorado (2013), New Hampshire (2014), Massachusetts (2018), Utah (2019), and Idaho (2022). According to the last conviction for adultery in Massachusetts, the statute was constitutional because “no fundamental right of privacy embodied in our constitutionally guaranteed right to ordered liberty bars criminal prosecutions of such persons.”
Adultery laws are mostly found in conservative states (especially in the South), but New York stands out as an exception. Adultery is a felony offense in Oklahoma, Michigan, and Wisconsin, and a misdemeanor offense in all other states. New York defines it as a Class B misdemeanor, while Wisconsin defines it as a Class I felony. Maryland has a $10 fine, Rhode Island has a $500 fine, Oklahoma has a five-year sentence, and Michigan has a four-year sentence.
Unlike in most states, South Carolina law does not allow an adulterous spouse to receive alimony. The maximum fine for adultery is $500 and/or imprisonment for no more than one year (South Carolina code 16-15-60).
In 2009, when then-governor Mark Sanford admitted to having an extramarital affair, South Carolina’s adultery law came to light.
The issue of whether South Carolina can prosecute a crime that occurred in another jurisdiction (Argentina in this case) remains unclear; furthermore, under South Carolina law adultery involves either “living together and having carnal relations with each other” or if they do not live together “habitual carnal relations with each other,” and proving that such involvement is more difficult.
Cohabitation for an unmarried couple was decriminalized in 2016; adultery (“Living in open adultery”, Art 798.01) is illegal; while living in open adultery is illegal (“Living in open adultery”, Art 798.01). Adultery is considered a Class B misdemeanor in Alabama.
In Virginia, adultery is a crime, so people going through a divorce may invoke the Fifth Amendment. Divorce decrees that alimony or assets are to be divided based on convictions for adultery. Adultery was proposed as decriminalization of civil offenses in Virginia in 2016, but the bill did not move forward in the Virginia Senate.
Adultery is a potential court-martial offense in the U.S. military, as defined by the General article (Article 134). According to the Manual for Courts-Martial (paragraph 99) “extramarital sexual conduct” consists of the following elements: (1) That the accused knowingly engaged in. In 2019, a change was made to the law on adultery to acknowledge same-sex relationships as adultery.
Due to Supreme Court decisions since 1965 regarding the privacy of consenting adults and their sexual intimacy, the enforceability of adultery laws is uncertain. Nevertheless, cases of adultery are prosecuted occasionally.
In six American states (Hawaii, New Mexico, North Carolina, South Dakota, and Utah), alienation of affections is a legal remedy (brought by a deserted spouse against a third party allegedly responsible for the failure of the marriage). In 2010, a North Carolina woman won a $9 million lawsuit against her husband’s mistress in a highly publicized case.
Is adultery illegal in the United States?
Trump lives in New York, where adultery is illegal in 21 states. During the 2008 election, the issue was briefly brought to the public’s attention when the governor of New York admitted to having extramarital relationships but claimed he had not broken any laws. The New York Times ran a follow-up story that began, “Actually, it appears that adultery is a misdemeanor in New York, punishable by either a $500 fine or 90 days in jail.”
When adultery is prosecuted as a criminal offense, the arbitrariness of enforcement undermines the rule of law and unfairly targets individuals who were unaware of the charges. In 2004, one of the states where infidelity is still illegal resulted in the “other woman” going to the police after an affair ended badly.
She was convicted of infidelity. After completing community service, he was able to clear his record but lost his job. The prosecutor defended the charges by saying, “We aren’t beating bushes or peeking through windows. The charges were thrown in our faces.”
In contrast to criminal prosecutions, job terminations, sanctions, and demotions are more common punishments for adultery. Infidelity can result in soldiers’ discharge or prosecution, and the courts have allowed dismissal or discipline of police officers, librarians, firefighters, FBI trainees, and librarians as a result of marital infidelity without any evident relationship to performance on the job.
Adultery also enters into the equation when allocating property and custody in divorce cases, although it isn’t always linked with parental fitness or financial need.
Paramours may even sue their spouses on the grounds of alienation of affection in some states. A 61-year-old Chicago man sued on that basis and said “You’ve got to be kidding me.”. “Is this really happening?” A jury awarded $9 million in damages to a woman who had broken up a long-standing marriage in another celebratory 2010 case.
Is adultery a Crime?
Most American marriages are characterized by adultery, which is a crime in most of the country. However, extramarital sex is not prohibited by law, and we do not consider ourselves criminals if we commit adultery.
The Supreme Court of the United States has given privacy legal significance, and acceptance of this right has virtually become a prerequisite for confirmation to the Supreme Court. As a marriage choice embraced by the right to privacy, as an association protected by the right to freedom of association, and as an act protected by the individual’s right to sexual privacy, adultery is related to privacy in three ways.
Although each state has its own adultery law, its intent is generally threefold: to protect the state against disease and illegitimate children, to preserve the institution of marriage, and to safeguard community morality. The adultery laws, though, do not seem to accomplish these goals; judicial decisions reflect that individual should be able to make their most personal and consensual choices without intervention from the government.
It was always a poor fit as a crime for adultery to be decriminalized, or effectively decriminalized. Marriage is the closest thing to a contract: you promise your love, your loyalty, and your assets to a special someone until death separates you.
The marriage license you receive from your city or county is not endorsed by any religion due to the First Amendment. Therefore, people can choose to add additional significance to their marriages, such as through their religions. A marriage simply represents the union of two adults.
Adultery is a grave breach of one’s vows, arguably the most serious breach; however, when stripped down to its core, it’s a violation of a contract and can be treated as such, as there are adequate remedies (such as divorce and division of assets) at law to help those who wish to end their marriage based on infidelity.
It may prove to be beneficial (1) to the enraged spouse to throw them in jail for adultery and (2) to discourage them from cheating again, but it would be incredibly costly. Adding a few weeks in the pokey isn’t likely to make much difference if people don’t fear losing half their assets, losing access to their children, and/or being shunned by their community.
Final Thoughts: Adultery in the United States
You’re not illegal for breaking a contract. Breaking a contract is considered a civil matter. Therefore, adultery should not be illegal based on your own statement.
Anyway, I believe that adultery shouldn’t be illegal. Marriage, I think, is a contract between two people. It’s a serious agreement that people should enter into with great care.
However, persuading consenting adults to do anything within their bed (or wherever they are) is only the responsibility of those who are in a relationship with the person or people who cheat. No matter how terrible it is, cheating isn’t something for which people should be penalized.
Versions: July and August 2022.
External resource: Wikipedia