NEW YORK, ALBANY— This has been against the law in New York for more than one hundred years.
But adultery might soon be legal in the Empire State thanks to a bill that is making its way through the New York Legislature. This would finally get rid of the rule that makes adultery illegal and can get you up to three months in jail.
Several states in the U.S. still have laws against adultery, but charges are rare and convictions are even fewer. At one time, cheating was the only way to get a divorce, so these laws were made to cut down on the number of divorces.
According to New York state law, adultery is when someone “engages in sexual intercourse with another person at a time when he has a living spouse or the other person has a living spouse.” It has been a misdemeanor in New York since 1907. Reports from the time say that the first people jailed under the new law were a married man and a 25-year-old woman after the man’s wife filed for divorce. This happened just a few weeks after the law went into effect.
According to Assemblyman Charles Lavine, who pushed the bill to overturn the rule, the law in New York has only been used to charge about 12 people since 1972, and only five of them have been found guilty. It looks like the last adultery charge in New York was brought against a woman in 2010 after she was caught having sex in a public park. However, the charge was later dropped as part of a plea deal.
Lavine says the law should be thrown out because it is never implemented and prosecutors shouldn’t be looking into what adults do behind closed doors when they want to be alone.
He said, “It makes no sense at all, and we’ve come a long way since we thought intimate relationships between adults who agree to them were wrong.” “That’s just a joke.” Some felt morally outraged about this law.
Katharine B. Silbaugh, a law professor at Boston University and co-author of “A Guide to America’s Sex Laws,” said that laws against adultery were meant to punish women and stop them from having affairs that could make it unclear who the child’s parents are.
Sibaugh said, “Let’s just say this: patriarchy.”
The Assembly has already passed New York’s bill to end the ban, and the Senate should pass it soon. The bill will then go to the governor’s office to be signed.
It was almost taken off the books in the 1960s because a state commission that was supposed to update the whole penal code found it very hard to police. People said at the time that the head of the committee said, “This is a matter of private morality, not of law.”
The Assembly at first agreed with the panel’s changes, but the adultery rule was brought back after a politician said that getting rid of it would make it look like state-supported cheating, according to a 1965 New York Times article.
In the same period, another story in The New York Times talked about opposition from at least one religious group that said adultery hurt marriages and the common good. The changes to the criminal code were signed into law in the end, and the ban on adultery stayed in place.
Most states that still have rules against adultery make it a misdemeanor, but Oklahoma, Wisconsin, and Michigan make it a felony. Using the same kinds of arguments as Assemblyman Lavine, several states, like Colorado and New Hampshire, have tried to get rid of their adultery rules.
Also, there are still doubts about whether or not laws against cheating are even legal.
In 2003, the Supreme Court threw out laws against sodomy. This made people wonder whether laws against adultery could also be upheld. In his dissent, Antonin Scalia, who was a justice at the time, said that the ruling called the bans into question.
But in the court’s landmark decision in 2022 that took away protections for abortion, Justice Clarence Thomas wrote that the Supreme Court “should reconsider” its sodomy law decision as well as its decision to legalize same-sex marriage in light of its newer understanding of how the Constitution protects freedom and privacy.
Since adultery charges are so uncommon, the high court’s possible view on the rules against them might just be for fun.