Adultery Laws in the United States

Adultery is said to be committed when a married person engages in an extramarital affair with a person who is not a party to the marriage. Adultery is viewed by many jurisdictions as offensive to public morals, undermining the marriage relationship.[1] Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture.[2] In countries where adultery is still a criminal offence, punishments range from fines to caning.[3]  In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning.[4] There are fifteen[5] countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia.[6]  In some jurisdictions, having sexual relations with the king’s wife or the wife of his eldest son constitutes treason.[7] In this article, we will discuss the legal stand on adultery in various countries.

“Durex‘s Global Sex Survey found that worldwide 22% of people surveyed admitted to having had extramarital sex.[8] According to a 2015 study by Durex and Match.com, Thailand and Denmark were the most adulterous countries based on the percentage of adults who admitted to having an affair.[9] In the United States, Alfred Kinsey found in his studies that 50% of males and 26% of females had extramarital sex at least once during their lifetime.[10] Depending on studies, it was estimated that 22.7% of men and 11.6% of women, had extramarital sex.[11] Other authors say that between 20% and 25% of Americans had sex with someone other than their spouse.[12] Three 1990s studies in the United States, using nationally representative samples, have found that about 10–15% of women and 20–25% of men admitted to having engaged in extramarital sex.[13] [14]”

In some countries, adultery is held as a primary ground of divorce. Some adultery laws differ based on the sex of the participants, and as a result, such laws are often seen as discriminatory, and in some jurisdictions, they have been struck down by courts, usually on the basis that they discriminated against women.[15] The definition of adultery from one jurisdiction to another, under the English law, adultery is considered as a felony. Traditionally, many cultures, particularly Latin American ones, had strong double standards regarding male and female adultery, with the latter being seen as a much more serious violation.[16] For example, even in India, men were punished under Section 497 of the Indian Penal Code, if they were having extramarital affairs with married women, and this rule was considered discriminatory and Section 49 of IPC was struck down by the Supreme Court of India on 27 September 2018, deeming it unconstitutional.[17] However, in the Indian army adultery is still considered a crime. “The specific consequences for committing adultery in the Indian Armed Forces may vary but can include administrative action, disciplinary action, or court-martial. The rules and procedures for dealing with such cases are established by the Indian military justice system.”[18]

As stated earlier adultery law differs from one jurisdiction to another, In Canada, though the written definition in the Divorce Act refers to extramarital relations with someone of the opposite sex, a British Columbia judge used the Civil Marriage Act in a 2005 case to grant a woman a divorce from her husband who had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.[19] In England and Wales, infidelity with a person of the same gender can be grounds for a divorce as unreasonable behaviour; this situation was discussed at length during debates on the Marriage (Same-Sex Couples) Bill.[20]

WHAT IS FAULT DIVORCE?[21]

Fault divorce may be granted when one spouse proves that the other spouse did something which resulted in the failure of the marriage. The fault grounds for divorce vary by each state, but some of the traditional fault grounds for divorce are adultery, cruelty, confinement in prison, physical inability to have sexual intercourse, and incurable insanity.

Today, all states allow no-fault divorce but about two-thirds of the states also still allow couples to obtain a divorce based on fault grounds. In addition to obtaining a divorce, some states also allow courts to consider fault in dividing property, awarding alimony, or awarding custody of the children.

Where is Adultery Still a Crime in the U.S.?[22]

In 2022, adultery by some definition is still a crime in 16 states: Arizona, Florida, Kansas, Illinois, Massachusetts, Oklahoma, Idaho, Michigan, Wisconsin, Minnesota, Utah, New York, Mississippi, Georgia, South Carolina and North Carolina. However, adultery is not always defined the same. For example, in North Carolina, the legal definition of adultery is to “lewdly and lasciviously associate, bed and cohabit together.” So, if you just pick somebody up at a bar, that’s not a crime. But if you have a secondary partner you spend weekends with…it’s a problem.

However, these laws are rarely enforced and particularly rarely since 2003. Lawrence v. Texas implied that these laws are, in fact, unconstitutional. Since then, many states have dropped adultery laws.

The United States is one of few industrialized countries to have laws criminalizing adultery.[23]  These laws have gradually been abolished or struck down by courts as unconstitutional.[24] As of 1 December 2023, adultery is a criminal offense (technically, not necessarily in practice) in 17 states and the Commonwealth of Puerto Rico but prosecutions are rare.[25]  Pennsylvania abolished its fornication and adultery laws in 1973.[26] The District of Columbia repealed its adultery law in 2003.[27] When passing the District of Columbia Organic Act of 1801, the 6th United States Congress extended all of the criminal laws of Maryland and Virginia to the respective territory within the District that each state had ceded to the federal government under Article I, Section VIII[28] and adultery had been an indictable offense in Maryland since the passage of a provincial law in 1715.[29] The last conviction for adultery in Massachusetts was in 1983 and held that the statute was constitutional and that “no fundamental personal privacy right implicit in the concept of ordered liberty guaranteed by the United States Constitution bars the criminal prosecution of such persons [adulterers].[30]

Law:

Below is the list of the statutes on adultery:[31]

• Alabama(Alabama Revised Statutes, § 13a-13-2)
• Arizona(Arizona Revised Statutes, § 13–1408)
• Florida(Florida Statutes, § 798.01)
• Georgia(Official Code of Georgia Annotated, § 16–6–19)
• Illinois(Illinois Compiled Statutes, § 720-5-11/35)
• Kansas(Kansas Statutes Annotated, § 21–5511)
• Maryland(Annotated Code of Maryland, § 10–5–501)
• Michigan(Michigan Compiled Laws, §§ 750.29-32)
• Mississippi(Unannotated Mississippi Code, § 97–29–1)
• New York(Consolidated Laws of New York, § 255.17)
• North Carolina(North Carolina General Statutes, § 14–26–184)
• North Dakota(North Dakota Century Code, § 12.1-20-09)
• Oklahoma(Oklahoma Statutes Annotated, §§ 21–871–872)
• Rhode Island(Rhode Island General Laws, § 11–6–2)
• South Carolina(South Carolina Code of Laws, §§ 16-15-60-16-15-80)
• Virginia(Virginia Code Annotated, § 18–2–365)
• Wisconsin(Wisconsin Statutes, § 944.16)
• Puerto Rico(Puerto Rico Laws, § 33–4758)
• Georgia (Official Code of Georgia Annotated, § 16–6–8)
• Illinois (Illinois Compiled Statutes, § 720-5/11-40)
• North Dakota (North Dakota Century Code, § 12.1-20-08) (note: even though the crime is called “fornication”, it only refers to having sex with minors or having sex in public. It doesn’t target private consensual sex between adults, so in practice this law is irrelevant; it’s only listed here for the sake of completeness because the crime is called “fornication” under the North Dakotan law)
• Massachusetts(Massachusetts General Laws, § 208–40) (note: criminalizes cohabitation between 2 ex-spouses after divorce as adultery. But since the Massachusettsan criminal anti-adultery statute was repealed in 2018 and there’s no punishment for it anymore, in practice this law is an irrelevant legislative remnant with no function)
• Oklahoma (Oklahoma Statutes Annotated, § 43–123) (criminalizes cohabitation between 2 ex-spouses after divorce as adultery)
• Mississippi (Unannotated Mississippi Code, § 93–5–29) (criminalizes cohabitation between 2 ex-spouses after divorce as adultery)

[1] Sweeney, JoAnn (2014). "Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws" (PDF). Loyola University of Chicago Law Journal. 46 (1): 127. SSRN 2836956 – via Loyola University Chicago.

[2] Morgan, Hector Davies (1826). The Doctrine and Law of Marriage, Adultery, and Divorce: Exhibiting a Theological and Practical View... W. Baxter.

[3] Bachelard, Michael (6 May 2014). "Aceh woman, gang-raped by vigilantes for alleged adultery, now to be flogged". The Age. Archived from the original on 8 May 2014. 

[4] Robinson, B.A. (1 September 2002). "Punishment for adultery in Islam". Ontario Consultants on Religious Tolerance. Archived from the original on 9 January 2015. 

[5] Batha, Emma; Li, Ye (29 September 2013). "Infographic: Stoning - where is it legal?". Thomson Reuters Foundation. Archived from the original on 27 January 2014.

[6] Redpath, Rhiannon (16 October 2013). "Women Around the World Are Being Stoned to Death. Do You Know the Facts?". Mic. Archived from the original on 26 February 2015.

[7] See, for example, Treason Act 1351 which still applies.

[8] "The Global Sex Survey 2005". durex.com. Archived from the original on 30 April 2008.

[9] "Infographic: The world's most adulterous countries". 18 February 2015.

[10] "Kinsey Study Data [Research Program]". The Kinsey Institute. Archived from the original on 26 July 2010.

[11] Wiederman, M. W. (1997). "Extramarital sex: Prevalence and correlates in a national survey". Journal of Sex Research. 34 (2): 167–174. doi:10.1080/00224499709551881. JSTOR 3813564

[12] Atkins, D. C.; Baucom, D. H.; Jacobson, N. S. (2001). "Understanding Infidelity: Correlates in a National Random Sample". Journal of Family Psychology. 15 (4): 735–749. doi:10.1037/0893-3200.15.4.735. PMID 11770478. S2CID 20925417.

[13] Wiederman, M. W. (1997). "Extramarital sex: Prevalence and correlates in a national survey". Journal of Sex Research. 34 (2): 167–174. doi:10.1080/00224499709551881. JSTOR 3813564.

[14] Clements, M. (7 August 1994). Sex in America today: A new national survey reveals how our attitudes are changing. Parade Magazine, 4–6.

[15] "Africa | Ugandan adultery law 'too sexist'". BBC News. 5 April 2007. Archived from the original on 27 February 2015.

[16] "The Milwaukee Journal - Google News Archive Search". google.com. Archived from the original on 9 March 2016

[17] Bureau, ABP News. "Supreme Court quashes Section 497, says 'Adultery not a criminal offence'". Archived from the original on 20 September 2020.

[18] Armed Forces and Adultery (drishtiias.com)

[19] Adultery - Wikipedia

[20] Tina Stowell, Baroness Stowell of Beeston, Lords Spokesperson for Women and Equalities (8–9 July 2013). "The Parliamentary Debates" (PDF). Parliamentary Debates (Hansard). Vol. 747. House of Lords. col. 145–147. "Archived copy" (PDF). Archived from the original on 5 March 2016. 

[21] fault divorce | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[22] Is Adultery Still a Crime in the United States? | by Jennifer R. Povey | Medium

[23] Bronner, Ethan. "Adultery, an Ancient Crime That Remains on Many Books Archived 3 May 2017 at the Wayback Machine." The New York Times. 15 November 2012. p. A12. 

[24] Joanna Grossman (25 January 2005). "CNN.com - Virginia strikes down state fornication law - Jan 25, 2005". Articles.cnn.com. Archived from the original on 10 December 2012.

[25] Lee, Jolie (17 April 2014). "New Hampshire Senate votes to repeal anti-adultery law". USA Today. Archived from the original on 2 September 2017.

[26] Paul B. Beers. Pennsylvania Politics Today and Yesterday: The Tolerable Accommodation.

[27] Kelly, John F. (December 1, 2003). "Va. Adultery Case Roils Divorce Industry". The Washington Post. 

[28] "Statutes at Large, 6th Congress, 2nd Session". A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875. Library of Congress.

[29] Pollard v. Lyon, 91 U.S. 225 (1875).

[30] "STOWELL, COMMONWEALTH vs., 389 Mass. 171". Masscases.com. Archived from the original on 9 September 2013. 

[31] Adultery laws - Wikipedia