Friday, April 18, 2014

Adultery as a Crime

Lots of people in the U.S. didn’t realize they were criminals. Though in some sense vilified, these folks’ offense—cheating—is an accepted fact of life. Pop-culture sites thrive on it, while professional athletes are notorious for it. Voters are relieved if it’s their candidate’s worst foible.

An Actual Crime

Believe it or not, cheating on a spouse is an actual criminal offense in 21 states. And while anti-adultery statutes are pretty much unenforced relics of the Puritan days, they remain enforceable law. The states that criminalize adultery usually classify it as a misdemeanor, but the behavior constitutes a felony in a few places.

In New Hampshire, adultery falls under the “Public Indecency” branch of offenses, just below “Prostitution and Related Offenses.” The offense consists of:
  • being married and having sexual intercourse with someone other than the defendant’s spouse, or
  • being unmarried and having sexual intercourse with someone the defendant knows to be married.
(N.H. Rev. Stat. § 645:3.)

Michigan law defines adultery as sexual intercourse between two people, “either of whom is married to a third person.” It designates the crime as a felony. The law has a curious provision that shows how old and sexist it is, specifying that an unmarried man who has sex with a married woman is guilty. (Mich. Comp. Laws § 750.29, 750.30.)

Changing Climate

Many haveunderstandablyresponded to the news that New Hampshire is repealing its anti-adultery law with, “What law?” (The New Hampshire Senate voted to repeal the statue and Governor Maggie Hassan has indicated she’ll probably go along.) That ignorance suggests the proper place for anti-cheating statutes in contemporary society. 

Even for those who find adultery entirely loathsome, doing away with laws that criminalize it is a no-brainer. In 2003, the Supreme Court found it unconstitutional to criminalize private, consensual sex between adults. (Lawrence v. Texas, 539 U.S. 558 (2003), discussing an anti-homosexual-sex law.) And last year, the Court held that the federal government must recognize same-sex marriages. (United States v. Windsor, 570 U. S. ____ (2013).) These decisions, though primarily having to do with equal treatment for all, show that today’s is an era of freedom in sexual relations and marriage.