Under the sweeping skyline of New York – where lovers exchange vows at the Empire State Building and married couples amble arm-in-arm through Central Park – lies an archaic law that criminalizes infidelity. But this remnant from 1907, which declares cheating on your spouse a crime, could soon be consigned to the history books.
Endeavoring to strike such an antiquated statute from the New York penal code, a new bill – currently wending its way through the state legislature – strives to repeal a law that, though infrequently invoked, still considers marital betrayal a misdemeanor punishable by up to three months’ imprisonment.
While rare, adultery bans are still entrenched in several legal systems across the United States. Initially enacted as deterrents to the rising divorce rates – when proving marital infidelity was the only path to legally dissolve a partnership – these laws now seem out of touch with the modern ideals of personal liberty and consent.
Brandishing the badge of misdemeanor since 1907, adultery in the Empire State takes the form of a person “engaging in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.” Not long after the law’s enactment, a philandering husband and his 25-year-old mistress fell victim – becoming the first couple to be pinned under this newly-minted crime.
Although it’s infrequency is notable – with just twelve charges since 1972 and only five convictions – the law still looms. The most recent instance transpired in 2010, revolving around a woman who, while embroiled in an act of passion in a public park, found herself facing an adultery charge only to have it later extinguished in a plea deal.
Assemblyman Charles Lavine, the legislative figure championing the law’s repeal, underscores how the law’s scant enforcement and its invasive nature of personal matters warrant its removal. Taking aim at a law that had been birthed from an outdated moral high ground, Lavine argues that times have moved on, pronouncing the adultery ban an unwarranted interloper meddling in the intimate affairs of consenting adults.
However, these laws weren’t merely legal expressions of moral outrage. Drawing up a comprehensive picture of America’s sex laws, Katharine B. Silbaugh, a Boston University law professor, highlights the underlying latent motive. These adultery bans traditionally targeted women, discouraging extramarital dalliances that had the potential to muddy the waters of child paternity – a disturbing echo of patriarchal control.
The gubernatorial pen now awaits New York’s bill to repeal the adultery ban, which has surged ahead, securing approval in the Assembly and likely the Senate soon.
Interestingly, an attempt to erase this law from New York’s legal transcript was made in the 1960s. A state commission revising the entire penal code dismissed it as unenforceable, with the commission’s head adamantly asserting that the domain of private morality wasn’t the playground of law.
However, the prospect of the law’s elimination roused a public outcry. Fearing erroneous interpretations of the state endorsing infidelity, these voices managed to secure its restoration. Resistance from religious groups, arguing the importance of marital fidelity for social stability, held sufficient power to maintain the ban’s existence with the penal code revisions.
Across America, several states that still censure adultery as misdemeanors are reexamining their stance on the matter. Following in Assemblyman Lavine’s footsteps, states like Colorado and New Hampshire have already taken to dismantling their adultery laws, armed with the same reasoning.
Questions of whether adultery laws can withstand the scrutiny of constitutional validation remain. A breakthrough Supreme Court judgment in 2003, which abolished sodomy laws, cast a spectral doubt on the longevity of adultery bans. Nevertheless, as highlighted by recent pivotal decisions concerning abortion and same-sex marriage, our interpretation of personal liberties and legal protections continues to evolve.
Admittedly, the Supreme Court’s take on adultery bans remains a matter of academic curiosity more than pressing legal reform. The infrequency of charges frames the debate as theoretical rather than practical. Yet, amidst this nuanced backdrop, one thing appears resolute – time’s tide is turning, and New York’s persistent adultery law may well be swept away with it.
