5 States Where Adultery is Still a Crime

Given the direction of national politics and headlines about Mark Sanford, John Ensign, and Arnold Schwarzenegger the pristine American institution of marriage, it got us wondering. Let’s say adultery makes a comeback. As a crime. What state would be best situated to start churning the wheels of prosecution? With at least a dozen states still criminalizing adultery (Wisconsin and Michigan actually make it a felony), we found five states where lawyers can have some fun parsing the relevant statutes and possibly prosecuting the law.

Illinois

Illinois has a fine way of defining the crime of adultery, to wit:

Any person who has sexual intercourse with another not his spouse commits adultery, if the behavior is open and notorious, and

(1) The person is married and the other person involved in such intercourse is not his spouse; or
(2) The person is not married and knows that the other person involved in such intercourse is married.

The definition of Illini adultery obviously made us wonder. What’s open and notorious? Well, we’re in luck, with the Illinois Supreme Court weighing in on an unmarried couple’s “immoral life [that] was so brazen and notorious that every neighbor was cognizant of it. Their lustful and clandestine impulses had attained such an arrogant stage that the two parties implicated defied the law and order, and decency of the Village of Sparta.” Wow. Had a little fun writing that, didn’t ya, Justice Eberspacher?

Alabama

Like all states with adultery statutes, Alabama requires the basic element of having sexual intercourse with a married person. It also adds a “cohabitation” requirement (but does not go so far as Florida, which criminalizes “lewdly and lasciviously” associating and cohabiting together). And it provides a curious loophole:

A person does not commit a crime under this section if he reasonably believes that he and the other person are unmarried persons. The burden of injecting this issue is on the defendant, but this does not change the burden of proof.

We call this the “I forgot I was married” defense, otherwise known as “I know it looks bad, but I can explain.” But, injecting this issue? Really?

Minnesota

Home of Michelle Bachmann and her gay praying husband Marcus, Minnesota criminalizes adultery only if one of the parties is a married woman:

When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

So, Don Draper, if you ever have to flee a charge of adultery from, say, Illinois, your potentially nonadulterous behavior will be welcomed in Minnesota. Just don’t do it in Wisconsin on the way over, or with a married woman when you get here. Actually, just don’t ask questions about the woman’s marital status, because “it is a defense to violation of this section if the marital status of the woman was not known to the defendant at the time of the act of adultery.”

Michigan

We didn’t expect Michigan to be so wacked out about adultery, but it is. First, it’s a felony to engage in adulterous behavior. And, like Minnesota, Michigan folks don’t like married women messing with unmarried men, or vice versa, singling such behavior out and stating “when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and liable to the same punishment.”

Worse, if a couple divorces but then chooses to shack up later and have some sex with, say, a single person, it’s a felony, at least in how we read the statute. Finally, because adultery is classified as a felony, you can technically be sentenced to life in prison. Under Michigan’s criminal sexual conduct statutes, penetration during an adulterous relationship (a felony) is first degree criminal sexual conduct. Yowza.

New York

New York has an adultery statute on the books, and thank God, because it really keeps that liberal state in line. The statute is pretty straightforward. But, fortunately or unfortunately, New York requires some corroboration:

A person shall not be convicted of adultery or of an attempt to commit adultery solely upon the testimony of the other party to the adulterous act or attempted act, unsupported by other evidence tending to establish that the defendant attempted to engage with the other party in sexual intercourse, and that the defendant or the other party had a living spouse at the time of the adulterous act or attempted act.

We’d love to know more about so-called “other evidence.” Actually, we’d love to know more about what constitutes an “attempt to commit adultery.” Any New York adultery attorneys out there?

(Photo: http://www.flickr.com/photos/tohoscope/3177793817)

Bitter Staff is a collection of current and former editors, contributors, and various other lawyers who have written for Bitter Lawyer over the years. Posts include interviews, contests, and other general lawyerly and bitter content.

8 Comments

  1. yoyo

    September 20, 2011 at 12:52 pm

    • John

      April 17, 2014 at 4:09 pm

      The punishment should be as much as it would be for a convicted rapist in my book. When you get married you take a legal and religious type oath and if you choose to be a moron you need to break it the same way it was created. When you go out and mess with someone else them mess with the person you are married to the things you could be passing onto them are limitless.

      I have been there and the hardest thing for me to do is forget or forgive she said she did not do anything but my mind fights that answer. I tried to talk it out but she tends to get frustrated and throw fits that she don’t want to talk about it.

      People that do such things should be punished for when you break someones heart and there trust you are creating a new version of there former selves. Depending on the persons mentality this could be good or bad.

  2. Alma Federer

    September 20, 2011 at 8:00 pm

    It should be. Once I am married, I would not want my husband to be poking some secretary then coming home and asking me to do my wifely duties. Imagine that? Me going where that was earlier in the day? No way, Ho-zay!

    • Michelle Beth

      September 20, 2011 at 8:48 pm

      Alma – If, or I should say when, that happens, Guano will be there to comfort you. I am sure he will also gladly do the same for Ellen.

      Right, Guano?

  3. Guano Dubango

    September 21, 2011 at 5:16 am

    I hope to be married myself, and therefore unavailable to comfort anyone who is not my wife.

    The women you list are not suitable for me, even though there are times where I feel vulnerable enough to think that they could be. I need a woman who is an attorney and who is strong, yet feminine, and who will be able to pass the tests my Aunt Ooona requires. She must be able and willing to bear me 3 issue, including 1 male heir, and must come home to live with me in Ghana. There are not too many women, particularly American lawyers, who wish to do this, even if they can have assurances that they will live in a royal manner. If you are able to suggest some young female who meets these minimum criteria, please to advise.

  4. Lee

    May 17, 2012 at 12:29 pm

    Hey, Guano, if you knew anything about science, you would know the male determines the sex of the baby, so, if you do not have male issue, you have only your own sperm to blame. Also, I hope you are here bullshi&&ing people, because your name, Guano means dung excrement, feces or shi&. It’s a good fertilizer, though.

    • Guano Dubango

      May 18, 2012 at 10:51 am

      I have become aware of this, since coming to your country. In my country, however, the name signifies that I am of royal heritage, and must marry someone who is either royalty, or of suitable intelligence to bring forward issue who will become of the finest royal lineage. This is why I seek a pretty law woman capable of becoming child bearing wench with great intelligence. I have not, as yet, found one in the legal community, and am now of the belief that I must find such a wench elsewhere.

  5. Dave

    December 12, 2012 at 5:31 pm

    Although I don’t believe in adultery, a felony might be a bit much. I think that it should be a misdemeanor in every state however.

    Why?

    Adultery does a lot more than break hearts. Adultery is the reason why families break up, people struggle, kids grow up in a single parent home. You also have kids growing up modeling somebody else to fill the missing parent, child support, some business go under because of divorce, people lose their jobs.

    Look at all of these troublesome kids that come from broken families. Adultery is the root of a lot of this madness. Adultery causes as many problems with our society as a lot of other crimes do.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>