Unbeknownst to some, cheating on your spouse in New York has been a crime for more than a century.
However, the rarely-applied law, which is punishable by up to three months behind bars, may soon be repealed due to a bill that is currently being pushed in the New York Legislature.
Several other states also have similar laws banning adultery in place. However, charges and convictions are extremely rare and were only applied as a measure to reduce the number of divorces during a time when adultery was the only basis to legally split from a spouse.
The law has been in place in New York since 1907. It is defined as a person “engaging in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.”
A New York Times article from the same time period reported that shortly after the law came into effect, a woman sued for divorce when her husband cheated on her with a 25-year-old woman, which led to both her husband’s and the woman’s arrest under the new law.
Since 1972, the law has only been applied on around a dozen occasions, and only five of those cases saw subsequent convictions, according to Assemblyman Charles Lavine, a sponsor of the bill to appeal the law.
Mr Lavine said that there’s no purpose in having a law that is never enforced and that breaches the privacy of consenting adults’ actions 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.”
The law was last applied in 2010 and led to an adultery charge against a woman who was caught engaging in a sex act in a public park. However, no conviction followed as the charges were later dropped as part of a plea deal.
The law previously came into question during the 1960s and almost led to its removal when a state commission tasked with updating the entire penal code established that adultery laws were nearly impossible to enforce.
The commission’s leader at the time referred to it as a “matter of private morality, not of law.” Although initially accepted, the changes were later reversed after a politician alluded to the removal of the law potentially indicating the state’s endorsement of infidelity, a 1965 New York Times article stated.
According to another article from the same period, some religious groups also argued at the time that the removal of the law would undermine the sanctity of marriage and the common good. The penal code was subsequently updated with the adultery ban remaining in place.
Some of the states with adultery laws, including Colorado and New Hampshire, have used similar arguments to Mr. Lavine’s to scrap their respective laws. While in most states where such laws are applicable, they are classed as misdemeanors, adultery is seen as a more serious offense in Oklahoma, Wisconsin, and Michigan, where it is considered a felony.
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, Justice Clarence Thomas wrote in 2022 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.
Having already made its way through the Assembly, the proposed New York bill is now expected to pass the Senate before heading to the governor’s office for a signature.
The Associated Press contributed to this article.