Divorce Mediation Blog

Isn’t it Time to De-criminalize Adultery?

Wednesday, May 21, 2014

In April, New Hampshire repealed its adultery statute. In doing so, it deleted a misdemeanor that was punishable by a fine of up to $1,200.00. Reports were that it had not been enforced in more than a decade, and the state Supreme Court had already eroded it by exempting gays and lesbians from prosecution because their sexual intercourse could not produce a child. New Hampshire joined 3 other states that have recently removed this archaic law from their books. That leaves 20 or so states that still criminalize marital infidelity, including Massachusetts.

Of the remaining statutes, ours is particularly harsh. Unlike Maryland, which threatens straying spouses and their lovers with a $10 fine, our law offers a 3 year prison sentence, a 2 year jail sentence or a fine of up to $500. While New Hampshire’s statute reputedly punished this act with lashes when enacted 2 centuries ago, ours has puritanical roots, too, that are obviously obscured by time and societal change. Our law has also fallen into complete disregard by law enforcement for more than a generation.

After New Hampshire’s repeal, we heard some Boston public radio commentators chuckling about those wacky New Hampshire-ites, seemingly oblivious to the fact that in comparatively liberal Massachusetts, the law is both more draconian and very definitely still on the books. The main impact of continued criminalization is an evidentiary complication in divorce cases, when testimony is impeded by refusals to admit cheating on the pretext of potential prosecution, based on the privilege against self-incrimination of the 5th amendment to the U.S. constitution. It is a small complication since our Supreme Judicial Court permits a judge to draw an inference adverse to the privilege claimant, but to no good end.

Crimes are acts against “the people”, and “the people” gain nothing from this unenforced statute. Its net effects are to clog the flow of evidence otherwise deemed to be relevant and helpful to the alleged “victim”, and minor amusement to lawyers. Clearly, it is not an effective deterrent! Contrary to the argument of New Hampshire opponents to repeal, continuing criminalization does not, by any demonstrable measure, protect marriage.

It is still illegal to graze cows on Boston Common on a Sunday. For a list of other silly laws that remain on state and local books, see www.dumblaws.com. It’s a hoot! There is still plenty of legal nostalgia to go around.

Isn’t it time for repeal?


Justice Delayed…

Wednesday, October 30, 2013

In the October 20, 2013 edition of the Boston Globe, Bella English wrote about alimony in Massachusetts, which she described as a model for the country that is being subverted, in her view, by judges who are slow to honor some of the limiting aspects of the Alimony Reform Act (eff. 3.1.12). She focused on a couple of hard cases: one where a judge attributed income to a payor who claimed to have no ability to pay; and another where a judge ordered to a payor to pay past his social security full retirement age.

We read the piece with interest as it dealt with scenarios that we deal daily as Boston area and Western Massachusetts family and divorce mediators and arbitrators. But, as sometimes happens, we were struck in the end, not so much by the main theme of the article, as by by subsidiary detail in the last paragraph; namely that the man's divorce case was heard for one day in January and next heard, for day 2 of trial, in October.

An axiom of criminal law is "justice delayed is justice denied". Well, it is not a constitutional matter for divorcing parties, but it sure is a substantive one. How can a judge possibly remember anything about a single day of trial, ten months later, with literally hundreds of intervening cases heard? How many facts and circumstances have shifted in nearly a year of family life during a truncated trial? For someone who is over-paying, or for another who is not receiving enough, how can a two-day trial over ten months ever serve their needs?

The court system struggles, in some respects heroically, in others with futility, with short resources, longer and increasing demands and a shrinking social safety net. But how can the public feel confident that it is being served, regardless of any substantive law reform, when cases cannot be effectively tried?


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