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In April, New Hampshire repealed its adultery statute.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?

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