The Supreme Court of India a few years ago struck down a colonial-era adultery law that made it illegal for a man to have sex with a married woman without the permission of her husband. Laws that criminalized adultery in Taiwan and South Korea have likewise recently been overturned by their constitutional courts. It is too bad that laws criminalizing adultery in the United States still exist.
Adultery is a felony in three states and a misdemeanor in 14 states.
A recently passed bill in the New York legislature will reduce that to 13 states if Governor Kathy Hochul signs it.
Adultery has been a crime in New York since 1907. Section 255.17 of the New York Penal Law states: “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a Class B misdemeanor.” A New Yorker convicted of adultery can face a fine and a jail sentence of up to 90 days. According to the New York Post, no more than 12 people have been charged with adultery in New York over the past 50 years.
On March 11, the New York Assembly passed a bill (S.8744, A.4714) to immediately repeal the statue against adultery. On April 3, the New York State Senate did likewise. Ten members of the Assembly voted against this bill — one Democrat and nine Republicans. Four state senators voted against the bill — two Democrats and two Republicans.
Democrat Liz Krueger, the Senate sponsor of the bill, described New York’s adultery ban as “outdated” and “antiquated.” Democrat Charles Lavine, the Assembly sponsor of the bill, maintained that the law is “rooted in nothing more than hysteria” and that those who object to repealing it are “sanctimonious moralizers.”
Yet, the New York Families Foundation — “a leading educational and engagement organization on issues pertinent to faith and family in the Empire State” — is disappointed that the bill passed.
Said executive director Jason McGuire: “The fact that the law bans adultery — even if that law is almost never enforced — sends an important message. The message is this: Marriage vows are not to be taken lightly. When a married person commits adultery, that act either damages their marriage or destroys it. The consequences of adultery, especially in the lives of children, are grievous. A healthy, loving society does everything within its power to encourage the formation and continuation of healthy, loving families.”
So, he is justifying the existence of a law because it sends a message.
Now, this doesn’t mean that the message is bad. To the contrary. Marriage is a solemn, divine institution. Adultery can destroy a marriage and have a negative impact on children. And yes, “A healthy, loving society does everything within its power to encourage the formation and continuation of healthy, loving families.”
But who should be sending this message? Society is not the government. The church is not the government. Pro-family organizations like the New York Families Foundation are not the government. It is not the government that should be sending messages about marriage, the family, adultery, or anything else, and the government should certainly not be sending messages via legislation. If a law is legitimate, then its purpose should never be to make a statement or send a message. The purpose of a legitimate law — a law that criminalizes aggression against one’s person or property — is to punish real criminal activity.
But message or no message, should there be laws against adultery?
Laws that criminalize adultery are some of most ridiculous and unenforceable laws ever enacted. They have no place in a free society. As legal scholar Jonathan Turley has well said: “These laws harken back to an earlier period, where a majority of citizens claimed the right to impose their values and morals on their neighbors. The notion of a government policing immorality runs against the grain of our constitutional system. That is more often associated with countries like Iran, where morality police roam the streets.”
Adultery is a voluntary, consensual, peaceful act that aggresses against no one’s person or property (as long as it doesn’t take place on a third party’s property without his permission). Adultery may be an immoral, deceitful, sinful act, but that doesn’t change the fact that it is a voluntary, consensual, peaceful act that should be beyond the purview of government.
It is not my business, your business, or the business of government to proscribe or punish voluntary, peaceful actions that take place between consenting adults.
Most Western countries repealed their antiquated laws against adultery in the twentieth century, and it is generally only Muslim countries that still continue to criminalize adultery. What a shame that in the United States — “the land of the free” — state laws like this remain on the books and were ever put there in the first place.