In 2004, John Bushey, a sixty-six-year-old attorney for the town of Luray, Virginia, pled guilty to adultery and lost his job as a consequence. His infidelity was never in doubt. After his extramarital affair ended badly, the woman involved went to the police. The assistant commonwealth attorney later defended the decision to prosecute: “We’re not out beating bushes and certainly we’re not peeking in windows. However, in this case, it was thrown in our face.” Initially it looked like Bushey might challenge the law; instead, he ended up accepting a deal that required twenty hours of community service in exchange for having the charges dropped and his record cleared.
Bushey is an isolated case. But it could arise in any of the twenty-one states that still have criminal prohibitions on adultery.
Adultery also figures as a basis for demotions, as a ground for tort liability in cases alleging criminal conversation and alienation of affection, and as a factor in allocating property and custody in divorce cases. This chapter explores the lingering legal role for adultery in the United States and argues for reform. Enforcement of criminal prohibitions has been infrequent, intrusive, idiosyncratic, and ineffectual, and should be unconstitutional. In employment cases, courts should not permit dismissals or demotions based on private sexual conduct, absent some demonstrable impairment of job performance. Nor should courts tolerate speculative and vexatious actions for criminal conversation and alienation of affection. Adultery should not influence alimony and custody awards, nor should it serve to reduce the punishment for deadly violence. None of these reforms should be seen as diminishing societal respect for marriage as an institution. Rather, they simply recognize the limits of law in policing fidelity, and the excessive costs of ineffectual attempts to do so.
Criminal Prosecutions
Criminal prosecutions for adultery are rare, but they should be rarer still, given the arbitrary and idiosyncratic nature in which prohibitions are enforced, and the invasions of privacy that they entail. In the states that make adultery a crime, the majority classify it as misdemeanor, but some punish it as a felony. Penalties range from a ten-dollar fine (Maryland) to life imprisonment (Michigan). Definitions also vary. Some make paramours guilty of adultery only if they are married; otherwise they are guilty of fornication. Some states require the conduct to be open and notorious. Several allow for prosecution only on complaint of the offended spouse, partly due to concerns about jeopardizing a still-salvageable marriage. As the commentary to the Model Penal Code noted, these statutes are generally unenforced. Even where spouses admit their adultery in divorce cases, they are virtually never prosecuted.
The infrequent circumstances in which individuals have been charged with adultery suggest the selective and somewhat random nature of enforcement. Typically the cases involve some public behavior or a complaint by a spouse. In 2010, a forty-one-year-old New York woman became the thirteenth individual in the state’s history to be arrested for adultery. She was caught having sex on a picnic table in a park near Buffalo but denied that her action was in plain sight or that any children were around. In explaining his decision to bring charges, the local district attorney emphasized that the police were “not out conducting investigations looking for people committing adultery.” However, in this case there were witnesses to the act, and “no basis not . . . [to] file the charge.” It is unclear why the prosecutor chose adultery rather than some other offense, such as one involving public indecency. If convicted, the defendant would have been subject to ninety days in jail or a $500 fine. Although she vowed to fight the constitutionality of the charge, it does not appear that the case ever got that far.
In 1989, in South Carolina, an appellate court affirmed a conviction of a man found parking at night in a remote location with a woman other than his wife. When pressed to explain his conduct, the man declined. He told his wife, “If I tell you the truth I know you won’t ever stay with me again.” This admission, coupled with the other circumstantial evidence, was enough to convince the appellate court that the parties were “romantically disposed toward each other. . . . The trial judge, not having been born yesterday, was convinced that [the defendant] had committed adultery. So are we.”
Most contemporary adultery prosecutions have involved complaints by an aggrieved spouse. In 2005, the wife of Lucius James Penn, a twenty-nine-year-old North Dakota air force engineer, complained to police that her husband was having an affair with a sixteen-year-old. In 1991, a New York handyman's wife accused him of having had sexual intercourse on several occasions with another woman. The case attracted notice because the last case on record in New York had been brought in 1940. In 1989, Donna Carroll's husband brought a charge of adultery during an acrimonious custody battle over the couple’s young son. That charge made her the first person to be accused of the crime in Wisconsin since 1888. Although the husband also admitted having adulterous affairs, prosecutors said they could not press a complaint against him because his affairs took place while he was trucker on out-of-state hauls. If convicted, Mrs. Carroll could have been sentenced to two years in jail and a $10,000 fine. The district attorney agreed to dismiss the charge in exchange for her participation in community service and parental counseling.
The most well-publicized of these criminal charges involved an Arizona man’s 2010 complaint that his wife of seventeen years had cheated on him at least seven or eight times. As the aggrieved husband, Dave Banks, explained to a national news network reporter, “If they used . . . [the adultery statute] all the time, maybe women or men would think twice about going and jumping in the sack and throwing away their marriage.” The police did not appear sympathetic. Banks claimed that it took two years for the department even to take his report, and a detective then told him that “it’s about time she got on with her life and you get on with yours.” Banks was unconvinced. “How do they get to pick and choose which laws they can and can’t enforce? They got somebody readily admitting guilt. Seems to me that’s a rubber stamp right through the court system,” he told a reporter. Prosecutors apparently did not agree; there is no record of a case being filed.
Occasionally, however, prosecutors claim that they are obligated to bring charges. In Wisconsin in 1989, the husband in an acrimonious divorce and custody proceeding filed a criminal complaint against his wife, who had admitted adultery in a family court hearing. In defending his decision to prosecute, the local district attorney claimed that he had no choice. “The law is on the books. There was strong evidence presented to me of a violation. For me to decide not to prosecute would be, in effect, to declare the statute null and void. And that is not my role as district attorney.”
In fact, prosecutors frequently decide not to prosecute for a wide variety of reasons. Even more newsworthy than the cases of prosecution are notorious cases in which adultery charges are not brought. For example, in 2008, Governor David Paterson of New York announced at a news conference that he had had several extramarital relationships but “didn’t break the law.” The New York Times followed up with a report that began, “Well, actually . . .” Adultery is a misdemeanor in New York, punishable by a fine of $500 or ninety days in jail. Rarely has it been invoked since the 1970s, and when it has, the charges are usually dropped. When asked about the prospect of a criminal prosecution of Paterson, a New York family lawyer responded, “Absent a Christian fundamentalist replacing [the local district attorney], I doubt it.” There are many other celebrated cases involving adulterous politicians who faced no criminal liability.
This is in keeping with public attitudes. Only a third of Americans believe that adultery should be a crime. Given these views, it is somewhat surprising that so many statutes remain on the books and that several have survived recent attempts at repeal. No one thinks the fight to preserve these statutes has much practical significance: the issue is symbolic. As Thurman W. Arnold observed three-quarters of a century ago, “Most unenforced criminal laws survive in order to satisfy moral objections to our established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.” The president of the Minnesota Family Council similarly explained his group’s support for such laws on the grounds that “they send a message. . . . When you are dealing with a marriage, it’s not just a private activity or a private institution. . . . It has enormous consequences for the rest of society.” In New Hampshire, opponents of adultery prohibitions disagreed. In their view, “Who we love and how we love is not something . . . the state has much business meddling in.” By contrast, the executive director of Cornerstone Policy Research opposed repeal of the state’s criminal statute because it would “diminish . . . the harmful effects of adultery.” According to state senator Robert Preston, the message would be that “anything goes in New Hampshire.” This would be misleading because “we do cherish some traditional values up here.” One of his colleagues agreed. State senator John Chandler felt that the “moral standards of the country are going downhill fast” and the legislature shouldn’t encourage the trend. “If it says in the Ten Commandments ‘Thou shalt not commit adultery,’ it still ought to stay in the statute.”
But the current of public opinion is running in the opposite direction. In 1991, in Connecticut, efforts by wronged spouses to launch criminal prosecutions convinced both houses of the state legislature to decriminalize adultery, despite claims that this would turn the state into a “moral wasteland.” And in Colorado in 2013, a bill to repeal adultery prohibitions was successfully packaged as a way to keep the government out of people’s bedrooms.
Where the statutes survive, it is because state legislators worry that sponsoring repeal would “border on political suicide.” As Walter Wadlington, a professor of family law at the University of Virginia put it, “If people don’t think anybody can be prosecuted under it anyway, why alienate a constituent by taking it off the books?” Many legislators may also share the views of Georgetown Law professor Paul Rothstein, who told a reporter,
I don’t want to be a nut case about this, but keeping the laws on the books is not such an off the wall idea. Just because something is done doesn’t mean that people want the law to reflect the baseness of human nature. They want the law to be aspirational and set forth our finest ideals. If we believe in marriage, and if the cement of that is loyalty and fidelity within a unit, then adultery does threaten that.
But occasional, idiosyncratic enforcement does little to express those ideals, and it compromises public respect for the rule of law. There is no principled basis on which to distinguish adultery cases that are prosecuted from the vast majority that are not. Nor does the rare enforcement effort constitute an effective deterrent to infidelity. Moreover, recent decisions of the U.S. Supreme Court suggest a strong basis for claiming that adultery prosecutions are unconstitutional.
Constitutional Challenges
In 1977, in a case involving minors’ access to contraceptives, the Supreme Court disclaimed any intention to answer “the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private, consensual sexual] behavior among adults.” A year later, the Court again declined to address that question in the context of adultery. Hollenbaugh v. Carnegie Free Library involved a librarian and a married janitor who were dismissed for “living together in open adultery” with their illegitimate child. In affirming their dismissal, a federal trial court rejected the couple’s claims that the library had infringed on their fundamental right to privacy, and that there was no “rational connection between their conduct and their fitness to perform their jobs.” The Court noted that the library had received complaints about the couple’s living arrangement. “As employees of a library in a relatively small community, plaintiffs were frequently called on to deal directly with the community,” so the library’s concern for their reputation was not, in the trial judge’s view, “arbitrary, unreasonable or capricious.”
The U.S. Supreme Court denied review. Justice Thurgood Marshall dissented, and wrote separately to protest an “unwarranted governmental intrusion into the privacy of public employees.” From his perspective, the trial court’s decision allowed a public employer “to dictate the sexual conduct and family living arrangements of its employees, without a meaningful showing that these private choices have any relation to job performance.” As he noted, the state had decriminalized adultery, and the library board members did not demand that the couple end their relationship. They insisted, rather, that the couple normalize it through marriage or stop living together. Thus, the library board “apparently did not object to furtive adultery, but only to petitioners’ refusal to hide their relationship. In essence, [the board] sought to force a standard of hypocrisy on their employees and fired those who declined to abide by it.” Such discrimination seemed to Marshall “particularly invidious.” The petitioners’ “rights to pursue an open rather than a clandestine personal relationship and to rear their child together in this environment closely resemble the other aspects of personal privacy to which [the Court has] . . . extended constitutional protection.” To Marshall, the library board’s action could not even satisfy rational basis review because it never showed that community disapproval of the couple’s living arrangements affected use of the library or compromised the librarian’s ability to discharge her duties. Nor was there any indication that the custodian’s job called for contacts with the community or that his performance was affected in any way by his extramarital relationship.
Hollenbaugh is the closest the Supreme Court has come to passing on adultery issues. In dicta in two cases involving access to contraception, concurring or dissenting justices suggested that adultery prohibitions were constitutionally permissible. In lower court decisions, constitutional challenges have been unsuccessful. In 1983, the Massachusetts state supreme court upheld the state’s adultery statute. The case involved a defendant arrested for having sexual intercourse with a woman not his wife in a van parked in a secluded wooded area. The court held that there was no “fundamental personal privacy right implicit in the concept of ordered liberty” protecting extramarital sex. Rather, the state has a legitimate interest in prohibiting conduct which may threaten that institution [of marriage]. . . . We take judicial notice that the act of adultery frequently has a destructive impact on the marital relationship and is a factor in many divorces.” If lack of prosecution of the crime “indicates a general public disfavor with the statute,” then the court believed that the appropriate response rested with the legislature, which had the power to repeal that statute.
Another unsuccessful constitutional challenge arose in 1982, when a federal trial court in Illinois held that the associational and privacy interests of a “swingers” club were not infringed by police harassment. Police officers had instructions to record the license plate numbers of club patrons and, where possible, to ticket them for minor traffic and vehicle violations. Because the patrons had not been dissuaded from attending meetings, the court held that their First Amendment interests had not been impaired. Interestingly, the court held that the club was not in violation of the state’s adultery law, which prohibited sexual activities that were “open and notorious.” Although the adulterous activities of the swingers’ club were well known, they took place behind closed doors, which was enough to shield them from criminal prosecution.
However, a more recent Supreme Court pronouncement on privacy raises questions about whether adultery prohibitions could withstand constitutional challenge. In 2003, in Lawrence v. Texas, the Supreme Court overruled its prior decision in Bowers v. Hardwick and struck down a criminal sodomy statute. According to the majority, decisions concerning intimate relationships are a form of liberty deserving constitutional protection. The Court also disagreed with Bowers’s conclusion that sodomy prohibitions were deeply rooted in the nation’s history; rather, the Lawrence court stressed that such statutes were rarely enforced and had been abolished in many states. That trend reflected “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” In the Court’s view, the Texas statute “further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
Lawrence was not a conventional due process decision. As Harvard professor Cass Sunstein notes, such a decision would have taken one of two approaches. First, the Court might have declared that engaging in private, consensual sexual activity constitutes a fundamental right and the state cannot interfere with that right absent a compelling justification. Alternatively, the Court might have said that the state lacks a rational basis for prohibiting private, consensual sexual activity. The Court did neither. Nowhere in its analysis did the Court use the terms “fundamental interest” or “rational basis.” Nor did it explain the implications of its holding beyond sodomy laws.
In his dissent, Justice Antonin Scalia criticized the majority’s decision as signaling the “end of all morals legislation, such as prohibitions on fornication, bigamy, adultery and incest.” Of all those statutes, Sunstein believes that adultery prohibitions present the hardest case. On the one hand, adultery involves an intimate, consensual, sexual relationship analogous to the ones in Lawrence and other cases involving procreation and sexuality that have received constitutional protection. And, as in Lawrence, the infrequency of prosecution reflects a broad consensus that the practice at issue should not be punished. On the other hand, the state has a legitimate interest in prohibiting adultery that is not present in cases involving sodomy, namely, protection of the institution of marriage and the interests of the innocent spouse. The Court has traditionally held marriage in the highest esteem; indeed, the right to privacy originated in cases concerned with marital privacy. The seminal case in constitutional privacy law, Griswold v. Connecticut, struck down a state’s ban on contraceptives on the ground that it intruded on the “sacred precincts of the marital bedroom.” And in Loving v. Virginia, which invalidated bans on interracial marriage, the Court called marriage “fundamental to our very existence and survival.” However, the frequency with which adultery occurs, and the infrequency with which adultery statutes are enforced, suggests that criminal prohibitions are an ineffective means of shoring up marital relationships.
Only one federal case since Lawrence has involved an adultery prosecution. In the North Dakota case noted earlier, the defendant air force engineer objected that the prosecution violated equal protection guarantees. The trial court agreed. It held that the state had the right to protect the institution of marriage and criminalize adultery but that the statute unlawfully discriminated by exempting those who disclosed adultery during a divorce or separation proceeding and by requiring a complaint by a spouse.
Another post-Lawrence decision arose in a somewhat odd factual context. In a 2009 District of Columbia case, a former hair salon employee sued her employer for sexual harassment and alleged as damages the loss of desire for intimacy with her husband. However, she was not legally married at the time. Although she thought she had divorced her prior husband, the divorce was not finalized until after the harassment occurred. This was relevant because any intimate relations in which she engaged with her second husband would technically constitute adultery, a criminal act under Virginia law. And, as the defendant noted, the “impairment of the ability to do something you do not have the legal right to do is not an actionable damage.” The federal trial court, however, rejected this defense on the ground that the Virginia Supreme Court had struck down the state’s fornication statute, and language in that decision suggested that the adultery prohibition was also invalid. In effect, the Virginia court had suggested that it considered “statutes criminalizing private consensual sexual intercourse irrelevant for the purposes of civil litigation.”
Taken together, intermittent enforcement of adultery prohibitions does little to enforce marital fidelity or reinforce confidence in the rule of law. Given the lack of public support for criminal prohibitions, legislatures should repeal them. Where legislatures decline to act, courts should strike down adultery prohibitions as an infringement of constitutionally protected rights of privacy. There is no rational basis for believing that infrequently and arbitrarily enforced prohibitions on adultery are an effective way of advancing the state’s interest in protecting innocent spouses and the institution of marriage. There are better ways to signal respect for that institution and better uses of law enforcement resources than policing private, consensual sexual activity.
Excerpted from "ADULTERY: INFIDELITY AND THE LAW" by Deborah L. Rhode, published by Harvard University Press. Copyright © 2016 Deborah L. Rhode. Used by permission. All rights reserved.
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