Adultery
Adultery, defined as a married person's engagement in sexual relations with someone other than their spouse, holds complex legal and social implications in the United States. While federal law does not classify adultery as a criminal act, various states maintain laws that can impose criminal or civil penalties for the behavior. As of 2024, sixteen states enforce adultery laws, with five treating it as a felony and others as a misdemeanor. Enforcement is infrequent, and in many cases, adultery serves primarily as grounds for divorce rather than incurring legal penalties.
Historically, societal attitudes towards adultery have evolved, particularly since the 1960s, when divorce laws became more lenient. Research has indicated that adultery may reflect differing values rather than indicative of marital failure. Furthermore, the impact of adultery on child custody and property settlements has diminished, with a growing focus on child welfare over moral judgments. Recent legislative changes in several states have also aimed to repeal outdated adultery laws, highlighting shifting societal views. Overall, while adultery remains a contentious topic with legal ramifications in some areas, its role in contemporary divorce and family law continues to evolve.
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Adultery
US federal law has never defined adultery as criminal behavior. However, recognizing that adultery is common despite guilt, shame, and social pressures against it, many states provide for either criminal or civil penalties. As of 2024, sixteen US states still had laws against adultery. In five of those states—Idaho, Massachusetts, Michigan, Oklahoma, and Wisconsin—adultery is treated as a felony; in the remaining fifteen it is treated as a misdemeanor.
If a married person has sexual relations with an unmarried person, some states apply the adultery law only to the married person, while others apply the law to both partners. Some states require that only one sexual act take place, while other states require habitual relations, cohabitation, or open adultery. In some states the government can bring charges, while in others charges can be brought only by the spouse of the married partner. In actuality, criminal charges are rarely applied. In some states adultery is grounds only for divorce, with no civil or criminal penalties.
Although a minority of states have such laws, and despite the diversity of criminal or civil penalties, adultery is almost universally recognized in the United States as grounds for divorce. Before the common acceptance of divorce in the United States and the expansion of legal grounds to obtain it, which began in the 1960s, and especially before no-fault divorces were allowed, married couples sometimes faked extramarital affairs in order to establish grounds for divorce. Consequently, several states specifically ruled out extramarital sexual relations as grounds for divorce.
Since the 1960s research has suggested that adultery might simply reflect diversity in values rather than a marital problem and that it is not a major factor causing divorce. Because of this view, less punitive actions have been taken against married people who engage in adultery. Proof of adultery frequently has been a factor in child custody decisions and in property settlements, with the partner who engages in adultery usually being at a disadvantage in both cases. As divorce has become more common and as attitudes toward sexuality have become more flexible, the issue of adultery has become less important in decisions regarding child custody and property settlement. Although it has continued to be important in some child custody cases, there has been a trend toward emphasizing child welfare rather than parents’ adultery. Scientific and social changes have also affected attitudes toward adultery. For example, while deoxyribonucleic acid (DNA) testing has been used by women to prove paternity in child-support cases, it has also become acceptable for husbands to test the paternity of their children when they suspect their wives of adultery. Incidences of adultery have increased among both husbands and wives, fostering fewer punitive legal and civil responses.
The Supreme Court ruled in Lawrence v. Texas (2003) that sexual activity between consenting adults is legal and that state laws against sodomy are unconstitutional. However, the ruling did not make it clear whether state anti-adultery statutes are also unconstitutional.
A few states have repealed laws against adultery through new legislation. In 2010 West Virginia passed legislation to repeal a number of "outmoded" state laws, including the law against adultery and lewd cohabitation. In 2013 Colorado governor John Hickenlooper signed a bill proposed by Democratic state lawmakers to remove an anti-adultery statute from state law. In 2014 New Hampshire lawmakers voted to repeal the state law that made adultery a crime; the repeal went into effect on January 1, 2015. In Virginia, however, a bill that would have decriminalized adultery and reclassified it as a civil offense was defeated in the state senate in January 2016.
Bibliography
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