New York Legislature Debates Repeal of Century-Old Adultery Law


In a move that looks set to redefine the marital landscape of New York, a century-old law that criminalizes infidelity is on the brink of being repealed. Dating back to 1907, the seldom-enforced law stipulates that cheating on one’s spouse could earn them up to three months behind bars. Yet, this once controversial law may be consigned to the annals of history with the New York Legislature actively deliberating a bill that seeks its repeal.

Adultery bans, akin to the one being debated in New York, still hold their ground in several American states, with charges and convictions remaining a rarity. The genesis of these laws dates back to an era when marital discord or spousal deceit was grounds enough for a legal separation.

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The law in question in New York constitutes adultery as any instance where a married individual engages in sexual relations with another person holding marital status. Notably, the law immediately sprang into action a few weeks post-implementation when a married man and a 25-year-old woman were apprehended. Both were the first to be penalized under the newly enacted law.

Since 1972, New York has seen a meager dozen charges filed under the stated law, and an even smaller fraction of five cases result in a conviction. This information is courtesy of Assemblyman Charles Lavine, the initiator of the bill aiming to abolish the adultery ban. The most recent charge traced back to 2010 when a woman was allegedly nabbed in a public space, engaged in a sexual act. However, following a plea deal, the charges were subsequently dismissed.

Lavine passionately advocates for the law’s annulment, referencing that its mere existence, let alone enforcement, is a gratuitous intrusion into adult private lives. He argues against the law, dubbing it outdated and preposterous.

Katharine B. Silbaugh, a legal extraordinaire at Boston University, also shed light on the underlying intentions of the adultery ban. In context, these laws were strategically designed to dissuade women from engaging in extramarital affairs that could potentially question the paternity of a child.

The bill seeking to do away with this law has successfully navigated the Assembly and is making strides to secure approval from the Senate. Subsequently, it will be forwarded to the governor for official approval.

Interestingly, the law was on the verge of abolition back in the 1960s. The then established commission in charge of revamping the entire penal code deemed the ban unworkable and suggested its removal, arguing that the matter was one of private morality and beyond the law’s jurisdiction.

Citing a 1965 New York Times piece, the Assembly initially agreed to the changes but reinstated the law under the pretense of not promoting infidelity.

Other states, such as Oklahoma, Wisconsin, and Michigan, classify adultery as a felony. Colorado and New Hampshire, however, in a move mirroring Assemblyman Lavine’s efforts, have taken steps towards dismantling their respective adultery laws.

The Supreme rulings of 2003 and 2022 have been crucial in aiding the argument against such laws. The former brought into question the ban’s constitutionality, while the latter emphasized the importance of reconsidering laws protecting personal liberty and privacy.

The Supreme Court’s position on these laws may drive academic discourse, notwithstanding the infrequent filing of such charges. Even so, it’s an issue pertinent to an evolving society grappling with the balance between morality, personal liberty, and the right to privacy in relationships.