It’s time to decriminalize adultery

You may not realize it, but committing adultery is illegal in New York state. I believe the state has no business regulating consensual sexual behavior between adults, which is why I introduced a bill in the Assembly (A.4714) to repeal and decriminalize adultery. After passing unanimously through the Codes Committee, the bill passed in the full chamber by a vote of 137-10, and is now in the hands of the State Senate.

Adultery is generally defined as sexual relations between someone who is married and a third party who is not his or her spouse. A letter to the editor of The New York Times published on Aug. 23, 1907, stated that a new law would be going into effect that made adultery a criminal misdemeanor. The penalty was 90 days in jail and a fine of up to $500, or both. The original intent of the law seems to have been to prevent collusive divorces, in which a husband and wife conspire to present a false narrative to the court in order to be granted a divorce.

In the 1960s came the realization that adultery is basically a private matter, and should not be aired in court, nor should any marriage be held to the public morals of the times. Both the American Law Institute and the New York State Temporary Commission on Revision of the Penal Law and Criminal Code published recommendations that adultery be decriminalized.

History has shown that criminalizing adultery does not serve as a deterrent, as the law was originally intended, nor does it aid in the rehabilitation of marriages that have been broken by an adulterous spouse. Criminalized adultery has even been used as blackmail by one spouse against another.

In a Los Angeles Times op-ed, Deborah L. Rhode, a law professor at Stanford and the author of “Adultery: Infidelity and the Law,” wrote, “There is no evidence that a decline in legal sanctions would result in an increase in adultery.” Rhode noted that the rate of infidelity in the United States has actually decreased since the first studies were conducted in the 1950s, and that “legal prohibitions persist largely for symbolic reasons.” While most Americans condemn adultery in theory, she said, they do not think it should be a crime.

As Rhode puts it so well, “The law needs to catch up. There are, to be sure, strong reasons to disapprove of adultery. It can have devastating consequences for spouses and children. But the steady recurrence of infidelity suggests the ineffectiveness of trying to use legal sanctions and workplace penalties to prevent infidelity. Legislatures should repeal criminal prohibitions and alienation-of-affection statutes, and where legislatures decline to act, courts should strike down adultery penalties as an infringement of constitutionally protected rights of privacy. There are better ways to signal respect for marriage, and better uses of resources than policing private consensual sexual activity.”

Today, New York is one of 20 states with laws still on the books criminalizing adultery. Since 1972, only 13 people have been charged with the crime. Of those, only five were convicted. And in virtually every one of those cases, some other crime was committed, and the prosecuting attorney added adultery.

Despite strong opposition in at least two states that repealed prohibitions on marital infidelity in the recent past (Connecticut and New Hampshire), there is no evidence to suggest that doing so has had the corrosive consequences that opponents had predicted.

In addition to its unenforceability and generally archaic nature, legislation on adultery also stigmatizes and victimizes women, because most of those charged are women. In fact, in some states, the law only applies to a married woman.

There are plenty of laws whose purpose is to protect the community, but some embody nothing more than someone’s idea of moral outrage. The targeted statute belongs in the latter category. If a law isn’t enforced, there’s no reason that it should be maintained.

Charles Lavine represents the 13th Assembly District.