Infidelity is a Crime. There is no crime or civil tort associated with infidelity. In legal terms, a criminal conversation refers to a lawsuit for defiling the marriage bed, which is to say adultery. You cannot sue or prosecute your partner if they were unfaithful to you.
In this article, we’ll discuss whether infidelity is a crime in the United States, Europe, or Canada.
Only a few industrialized countries have laws criminalizing adultery or infidelity, including the United States. “Laws vary from state to state in the United States”. Many U.S. states (especially those in the South and Northeast) had laws against fornication, adultery, and cohabitation up until the middle of the 20th century. The courts have gradually ruled that these laws are unconstitutional or abolished them
Adultery laws are rarely enforced by state governments. In the years following the Supreme Court’s 2003 Lawrence v. Texas decision, federal appeals courts have ruled inconsistently on whether these laws are unconstitutional, and as of 2019, the Supreme Court has not ruled directly on this issue.
In 16 states, adultery is a criminal offense as of 2022, but prosecutions are rare. A law that prohibited fornication and adultery in Pennsylvania was abolished in 1973. Several states have decriminalized adultery in recent years, including West Virginia (2010), Colorado (2013), New Hampshire (2014), Massachusetts (2018), Utah (2019), and Idaho (2022).
During the last adultery conviction in Massachusetts in 1983, the court held that the statute was constitutional and that “there is no fundamental right to personal privacy implicit in the concept of ordered liberty guaranteed by the United States Constitution that prevents criminal prosecution of individuals who commit adultery.
Most adultery laws are found in conservative states (especially Southern states), but New York is an exception. Adultery is a felony in Oklahoma, Michigan, and Wisconsin, while it is a misdemeanor in the other states. In New York, it is a Class B misdemeanor, whereas, in Wisconsin, it is a Class I felony. Maryland imposes a $10 fine, Rhode Island a $500 fine, and Oklahoma a five-year prison sentence.
Adultery in South Carolina carries a fine of $500 and/or one year in prison (South Carolina code 16-15-60), and divorce laws deny alimony to the adulterous spouse.
It is illegal to live in open adultery (“living in open adultery”, Art 798.01) in Florida, whereas cohabitation of unmarried couples has been decriminalized since 2016.
In Virginia, adultery is a crime, so divorce proceedings can be defended by the Fifth Amendment. Alimony and asset distribution can be determined by criminal convictions for adultery. The Virginia Senate did not advance a bill to decriminalize adultery in 2016 and make it a civil offense
The states of Hawaii, North Carolina, Mississippi, New Mexico, South Dakota, and Utah permit deserted spouses to bring a tort action against a third party for alienation of affections.
Canada: Infidelity is a Crime
In Canada, adultery is one of the grounds for divorce, and it is important to note that the other party must commit the act for the divorce to be granted; a spouse cannot divorce themselves.
You may sue your mistress for a variety of reasons, but it won’t be because she interfered with your marriage. In Canada, such lawsuits have been abolished since 1792, as their courts have ruled that domestic matters are not subject to the law.
There is no longer a crime of adultery or infidelity in any European country.
In English law, adultery was not a criminal offense between the late twelfth and seventeenth centuries. By the Matrimonial Causes Act of 1857, ecclesiastical courts in England and Wales (and some British territories of the British Empire) abolished jurisdiction over adultery by ecclesiastical courts from the twelfth century. English and Welsh common law of tort, however, allowed a spouse to sue an adulterer for damages based on loss of consortium from the early seventeenth century until the Law Reform (Miscellaneous Provisions) Act 1970. In the decade when the Commonwealth (Adultery) Act (1650) was in effect, adultery was also illegal under secular law.
Italy (1969), West Germany (1969), Malta (1973), Luxembourg (1974), France (1975), Spain (1978), Portugal (1982), Greece (1983), Belgium (1987), Switzerland (1989), and Austria (1997) were the last Western European countries to decriminalize adultery.
Adultery was not a crime in most Communist countries. Adultery was a crime in Romania until 2006, though the crime had a narrow definition, which excluded situations where the other spouse encouraged the act or when the act occurred when the couple lived separately and apart; prosecutions were extremely rare in practice.
The Turkish adultery law of 1996/1998 was invalidated because it was deemed discriminatory as it differentiated between men and women. There were proposals to introduce a law on adultery that was gender-neutral in 2004. In hindsight, the European Union’s objections may have played a role in the plans’ abandonment.
Adultery was often punished harshly before the 20th century. In Scandinavia, adultery and bigamy were punishable by death in the 17th century, although few people were executed.
In Medieval and Early Modern Europe, women who committed adultery were executed for their crimes such as Maria of Brabant, Duchess of Bavaria (in 1256), Agnese Visconti (in 1391), Anne Boleyn (in 1536), Beatrice Lascaris di Tenda (in 1418), and Catherine Howard (in 1542). Depending on the jurisdiction, adultery laws were enforced differently. Susan Bounty, who was hanged for adultery in 1654, is believed to have been the last woman to be executed for adultery in England.
Several cases involving the legitimacy of firing a person for adultery have been considered by the European Court of Human Rights (ECHR) in recent years. These cases dealt with people working for religious organizations and raised the question of how to balance the right of a person to be respected for their private life (recognized in the EU) with the right of religious communities to be protected against undue interference by the State.
In every case, these situations must be analyzed considering their specific circumstances. It had ruled both in favor of the religious organization (in the case of Obst) and in favor of the fired employee (in the case of Schüth).
External resource: Wikipedia