By ANTHONY IZAGUIRRE | Associated Press
ALBANY, N.Y. — For more than a century, it has been a crime to cheat on your spouse in New York.
But adultery may soon be legal in the state thanks to a bill in the New York Legislature that would repeal the seldom-used law.
The bill has passed the Assembly and the Senate, and will now be sent to the governor’s office.
A misdemeanor in New York since 1907, and punishable by up to three months in jail, adultery is defined in state code as sexual intercourse between two people if one or both have a living spouse.
Adultery bans are still on the books in 17 U.S. states — most of them in the Southeast — though charges are rare and convictions even rarer.
Only about a dozen people have been charged under New York’s law since 1972, and of those, just five cases have netted convictions, according to Assemblyman Charles Lavine, who sponsored the bill to appeal the ban. The last adultery charge in New York appears to have been filed in 2010 against a woman who was caught engaging in a sex act in a public park, but it was later dropped as part of a plea deal.
Lavine says it’s time to throw out the law given that it’s never enforced and because prosecutors shouldn’t be digging into what willing adults do behind closed doors.
“It just makes no sense whatsoever, and we’ve come a long way since intimate relationships between consenting adults are considered immoral,” he said. “It’s a joke. This law was someone’s expression of moral outrage.”
A 1907 article in the New York Times said the primary reason for the law was to discourage what were known as “collusive divorces.” Because adultery was the only reason a divorce could be granted, a couple who wanted a legal split could agree to say that one of them had cheated. If adultery were illegal, the thinking went, even a person seeking a divorce would be less likely to confess to it.
Katharine B. Silbaugh, a law professor at Boston University who co-authored “A Guide to America’s Sex Laws,” said adultery bans also served punitive measures aimed at women, intended to discourage extramarital affairs that could throw a child’s parentage into question.
“Let’s just say this: patriarchy,” Silbaugh said.
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Most states that still have adultery laws classify them as misdemeanors, but Oklahoma, Wisconsin and Michigan treat adultery as felony offenses.
There also are lingering questions over whether adultery bans are even constitutional.
A 2003 Supreme Court decision that struck down sodomy laws cast doubt on whether adultery laws could pass muster, with then-Justice Antonin Scalia writing in his dissent that the court’s ruling put the bans in question.
However, in the court’s landmark 2022 decision that stripped away abortion protections, Justice Clarence Thomas wrote that the Supreme Court “should reconsider” its sodomy law decision, as well as its decision legalizing same-sex marriage, in light of its newer interpretation of Constitutional protections around liberty and privacy.