In June 2010, a 41-year-old woman named Suzanne Corona was arrested for having sex on a picnic table in a playground with a 29-year-old man named Justin Amend. A mother in the park with her children saw the couple and called the Genesee County police. This behavior was unseemly, and surely uncomfortable; it was also, in New York state, illegal. Suzanne was a married woman, and the man with whom she was having sex was not her husband. The crime was adultery, which was a misdemeanor, which could be punished with a fine of up to $500, and even jail time of up to 90 days. She was only the 13th person in New York history to be charged with the crime of adultery. The law under which she was charged was just repealed.
The History of Adultery Law
A married person who has sex with somebody other than the person’s spouse has committed “adultery.” But what is the legal significance of the act? Adultery was grounds for divorce in every state during the fault-based era (some history of which can be found here). But adultery could have criminal consequences as well.
Adultery was at one time a crime in most of the states. It had been a crime as far back as the colonial period. Adultery was punishable by death in Massachusetts Bay, and in 1644 a woman who had betrayed her elderly husband was hanged, along with her lover. The condemnation of adultery was universal; it was, after all, expressly forbidden by the Ten Commandments. But punishment this extreme was a very rare occurrence. More typical was a New Hampshire statute of 1701, which exposed adulterers to public stigma and scorn, and bodily punishment: the offending couple would sit by the gallows, in full view of the public, with a rope around their necks; and then be “severely whipt.”
Adultery continued to be a crime in most states after Independence, but in at least some of the states, the definition was significantly changed. Adultery in these states was not a crime in itself: the crime was “open and notorious adultery.” This meant that an occasional fling, a one-night stand, or a visit to a brothel by a married man were no longer crimes. Only adultery that flaunted itself, and that was more or less public, counted as a crime. The law forbade adultery, in other words, only when it cast doubt on the moral code, or invited others to violate it. For the rest: after all, the flesh is weak. Or, to put matters another way, the purely religious basis of adultery had weakened and been replaced by a social theory.
Still, adultery was a crime in many states. Most adulterers, of course, never faced the lash of the law. There were occasional prosecutions: in Boston, in 1920, about two dozen men and two dozen women were arraigned for “adultery.” This was the height of the so-called progressive era, when many states passed and enforced laws designed to enforce moral norms such as criminal bans on cohabitation, fornication, bastardy, and spousal abandonment.
The Slow Fade of Adultery Laws
That era didn’t last. By the middle of the 20th century, criminal codes were either reformed to reflect changing attitudes toward sexual behavior—or at least changing attitudes about the use of the criminal law to police it—or left on the books but rarely enforced. The famous Kinsey Reports (on male sexual behavior in 1948 and on the sexual behavior of women in 1953) claimed, through interview data, that adultery was far from a rare event. One by one, the states peeled off adultery from their criminal codes in this period. The trend has continued to this day. Minnesota got rid of this crime in 2023.
Who Decides Whether Cheating is a Crime?
Adultery has always been a matter of primarily a matter of state law. But the federal government has had at least a cameo role in punishing adultery. The Mann Act, which dates from 1910, made it a crime to transport a woman across state lines for purposes of prostitution, debauchery (a quaint word, now virtually obsolete), and any other “immoral purpose.” The Mann Act, the so-called “white slavery law” (Congress didn’t seem to mind the racism of the title at the time) was based on a widespread moral panic about what we would now call sex trafficking: forcing young girls into a life of prostitution, basically against their will.
There was, to be sure, a lot to criticize in the sordid world of pimps, panderers, and red-light districts. But in the Caminetti case (1917), the Supreme Court gave the Mann Act an extremely expansive reading. Drew Caminetti and his friend Maury Diggs were both married men who lived in Sacramento, California. They were not exactly ideal husbands. The men went with their girlfriends across the state line into the wicked world of Nevada, where they rented hotel rooms. The folks back home were outraged and blew the whistle on Caminetti and Diggs; they were arrested, tried under the Mann Act, and convicted. Their appeal went all the way up to the Supreme Court. They had a plausible defense: the statute was about white slavery, about prostitution, about commercialized vice; and nothing more. But the Supreme Court disagreed and affirmed the convictions. The men had gone with their girlfriends across a state line, for a purpose that was clearly “immoral.” In other words, the Mann Act now applied to what we might call interstate adultery.
The Caminetti case opened the door to using the Mann Act, as enforced by the FBI, as a tool against husbands (and the occasional wife) whose adultery involved more than one state. In the years afterward, the Act was invoked by indignant spouses, demanding that the government make use of the law to visit well-deserved punishment on spouses who crossed the line, in more ways than one. The Mann Act is still in effect today; but it has been much amended and defanged. It is now, for one thing, unisex. And the current version only applies if a person is transported across state lines for purposes of prostitution, or for any criminal sexual activity. Caminetti and Diggs could not be convicted today. Adultery is not a crime in California, and certainly not in Nevada.
Still, adultery remains a federal crime in one sense: it can be punished under Article 134 of the Uniform Code of Military Justice. This is a catch-all clause, applying to “all disorders and neglects to the prejudice of good order and discipline in the armed forces,” and “all conduct of a nature to bring discredit upon the armed forces.” The commentary on this article discusses adultery in some detail. In theory, any member of the armed forces who is married and who goes to a brothel or carries on an affair in the course of a weekend pass violates Article 134. But those in the lower ranks are usually more or less immune. Adulterous behavior by officers is more serious offense. In June 2024, an Air Force General pleaded guilty to adultery in the course of a court-martial.
Adultery in New York
As of 2024, adultery survived as a crime in about 15 states, including New York until this November. In New York, adultery had been defined as a “class B misdemeanor.” In a few states, adultery is classified as a felony, which made it (on paper at least) a more serious matter. This is true of Michigan and Wisconsin. In Florida, the definition of the crime harkens back to the statutes on “open and notorious adultery.” The crime in Florida consists of living “in an open state of adultery.”
Even though the adultery laws survived in some states, they are almost meaningless fossils. Hardly anybody is ever arrested or punished. In the last century, only about a dozen people had ever been charged with the crime in New York, and only a few were actually punished. Websites of lawyers in the states where adultery is still a crime almost invariably say that adulterers run very little danger. Even if they might be arrested, prosecution is unlikely. Suzanne Corona, the woman arrested in upstate New York in 2010, was not ultimately prosecuted for adultery, although she did plead guilty to public lewdness (and was arrested several subsequent times for shoplifting, drug dealing, and promoting prostitution).
In New York, even high-ranking adulterers did not suffer the bite of the criminal justice system. Two governors in a row had been exposed as adulterers. Governor Eliot Spitzer, a long-married man, stepped down from his office after he was caught having spent many thousands of dollars on prostitutes. With his wife by his side, he apologized to New Yorkers for his “failings;” he certainly wasn’t arrested despite compelling wiretap evidence that he had had sex with several women who were not his wife. Spitzer was then replaced by his Lieutenant Governor, David Paterson, who gave a press conference during his first week in office in which he revealed that he and his wife had both committed adultery. Not to worry, he reassured his constituents, “I haven’t broken any laws.” Of course, he had broken a law of the state over which he was now poised to preside. But no one thought twice about his confession.
Now, finally, in 2024, New York’s legislature has joined the majority of the states and abolished the crime of adultery. Governor Kathy Hochul signed the bill, which had passed in the legislature easily, with almost no open opposition. The Governor referred to her own 40-year marriage, which presumably never included any adultery; she also called the adultery law silly and outdated. People, she said, had “complex relationships.” These people (the ones with “complex relationships,” apparently) should handle the matter on their own, she felt.
The Relationship Between Adultery and Bigamy
Is this the end of the matter? Not for everyone. Adultery may not be a crime; but it is behavior that many people, perhaps most people, disapprove of. It is a violation of one of the Ten Commandments, which are now posted by law in the classrooms in some Southern states. And they’re likely to be emphasized in states like Oklahoma and Texas that are determined to bring down the wall between Church and State in the name of Jesus. Adultery is a sin, a violation of the marital pledge, a form of “cheating,” or worse. During the heyday of the movie Production Code (roughly the 1930s to the 1950s) no movie was allowed to say a kind word for adultery, or to suggest that it might, in some cases, be OK. But then, as now, adultery was relatively commonplace. Despite the Code, and the Bible, and religious teaching in general, adultery is unlikely to go extinct.
Does the action of the New York legislature mean adultery is no longer in any regard a crime in New York? Yes and no. New York is unlikely ever to reenact a ban on adultery per se. But at least one form of adultery remains a crime: bigamy. A bigamous marriage is considered legally void, so in a sense it never really existed; but the attempt to marry while already married is a crime in every state. A man (bigamists are almost always men) cannot be punished for having a mistress, but if a man proposes marriage to a woman, pretending to be single and available, while in fact he is married, he has committed a crime and can be punished. His behavior is fraudulent; at one time, it was particularly destructive, in that he took wife number two off the marriage market and turned her from a bright prospect into ruined goods. But even in this day and age, bigamy is a nasty form of fraud. More things than money can be stolen.
A special case, historically, was polygamy—marriage to two, three, or many women—as it was practiced by members of the Church of Latter-day Saints until 1890. The Church allowed, and indeed prescribed, polygamy for its leaders. The practice horrified the rest of the country. The federal government took drastic legal steps to stamp out the practice and punish its practitioners in the territory of Utah. The Church, under siege, renounced polygamy as part of official church doctrine in 1890; but there are small, breakaway sects of the Church that have kept up the practice. But as long as a polygamous family includes only one legal marriage and relegates the others to “spiritual marriage” status, they likely haven’t committed the crime of bigamy in most states. Utah had an unusually broad definition of bigamy that included cohabitation with someone while legally married to someone else—a provision that prosecutors threatened to enforce against the family featured in the reality show Sister Wives. But that law has since been narrowed to a more traditional definition, and the criminal consequences for bigamy have been reduced as well. Although there are tens of thousands of practicing polygamists in the United States, criminal prosecutions for bigamy, like prosecutions for adultery, are rare. The noteworthy prosecutions against fundamentalist Mormons have involved crimes like child rape, incest, facilitating child marriage, child abuse, and welfare fraud. The marriages themselves, though sometimes technically illegal, are generally ignored by police and prosecutors.
The Trouble with Adultery
So much for the criminal aspects of adultery. Adultery has had a good deal of significance in civil cases. The most obvious example, as mentioned above, is in the law of divorce. Before the 1970s, divorce was available only when a supposedly innocent spouse (usually a wife) sued for divorce, against a spouse (usually a husband) who was guilty of some offense against the marriage. State divorce law listed these various “grounds” for divorce. Adultery was always on the list. The list varied from state to state, and usually included such things as desertion and cruelty; but not in New York. In New York, adultery was the sole practical ground for divorce.
This gave rise in New York to a peculiar form of collusion, which we might call soft-core adultery. A man would check into a hotel. A woman would join him. They would get partially undressed. Lo and behold, a photographer would appear and snap their picture as they sat and perhaps embraced. The man would pay the woman; and she would leave. The photographs would end up in court as evidence of adultery. Hundreds of divorces were granted in the state on the basis of this make-believe (no doubt there was plenty of real adultery as well). Of course, adultery was a crime in New York, as we mentioned, at the time. Husbands by the thousand had confessed to adultery, explicitly or otherwise, in these divorce cases. Yet none of them were arrested for the crime of adultery.
The passage of no-fault divorce laws put an end to this charade. Adultery is no longer “grounds” for divorce, even in New York. It may still matter, of course, when there is an issue of child custody, or division of property, or even on whether he or she gets to keep a pet dog. It is still better to be an innocent spouse, compared to an adulterer.
Adultery is also no longer, in any meaningful sense, a crime, even if there are obsolescent laws on the books in some states. Adultery no doubt evokes less horror than it did in the 17th century, when an adulterous couple faced the grim image of the gallows, and the even more grim image of eternal damnation. As far as the law is concerned, the affair has, to a large degree, ended. Out in society, the story may be quite different.
