Note: I wrote this in 2011 when I was officially a “legal humorist” as well as the founder of Big Legal Brain and editor of Bitter Lawyer. The original article is published here.
Given the direction of national politics and headlines about Mark Sanford, John Ensign, and Arnold Schwarzenegger, the pristine American institution of marriage, it got us wondering. Let’s say adultery makes a comeback. As a crime. In 2015. What state would be best situated to start churning the wheels of prosecution? With at least a dozen states still criminalizing adultery (Wisconsin and Michigan actually make it a felony), we found five states where lawyers can have some fun parsing the relevant statutes and possibly prosecuting the law.
Illinois
Illinois has a fine way of defining the crime of adultery, to wit:
Any person who has sexual intercourse with another not his spouse commits adultery, if the behavior is open and notorious, and
(1) The person is married and the other person involved in such intercourse is not his spouse; or
(2) The person is not married and knows that the other person involved in such intercourse is married.
The definition of Illini adultery obviously made us wonder. What’s open and notorious? Well, we’re in luck, with the Illinois Supreme Court weighing in on an unmarried couple’s “immoral life [that] was so brazen and notorious that every neighbor was cognizant of it. Their lustful and clandestine impulses had attained such an arrogant stage that the two parties implicated defied the law and order, and decency of the Village of Sparta.” Wow. Had a little fun writing that, didn’t ya, Justice Eberspacher?
Alabama
Like all states with adultery statutes, Alabama requires the basic element of having sexual intercourse with a married person. It also adds a “cohabitation” requirement (but does not go so far as Florida, which criminalizes “lewdly and lasciviously” associating and cohabiting together). And it provides a curious loophole:
A person does not commit a crime under this section if he reasonably believes that he and the other person are unmarried persons. The burden of injecting this issue is on the defendant, but this does not change the burden of proof.
We call this the “I forgot I was married” defense, otherwise known as “I know it looks bad, but I can explain.” But, injecting this issue? Really?
Minnesota
Home of Michelle Bachmann and her gay praying husband Marcus, Minnesota criminalizes adultery only if one of the parties is a married woman:
When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
So, Don Draper, if you ever have to flee a charge of adultery from, say, Illinois, your potentially nonadulterous behavior will be welcomed in Minnesota. Just don’t do it in Wisconsin on the way over, or with a married woman when you get here. Actually, just don’t ask questions about the woman’s marital status, because “it is a defense to violation of this section if the marital status of the woman was not known to the defendant at the time of the act of adultery.”
Michigan
We didn’t expect Michigan to be so wacked out about adultery, but it is. First, it’s a felony to engage in adulterous behavior. And, like Minnesota, Michigan folks don’t like married women messing with unmarried men, or vice versa, singling such behavior out and stating “when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and liable to the same punishment.”
Worse, if a couple divorces but then chooses to shack up later and have some sex with, say, a single person, it’s a felony, at least in how we read the statute. Finally, because adultery is classified as a felony, you can technically be sentenced to life in prison. Under Michigan’s criminal sexual conduct statutes, penetration during an adulterous relationship (a felony) is first degree criminal sexual conduct. Yowza.
New York
New York has an adultery statute on the books, and thank God, because it really keeps that liberal state in line. The statute is pretty straightforward. But, fortunately or unfortunately, New York requires some corroboration:
A person shall not be convicted of adultery or of an attempt to commit adultery solely upon the testimony of the other party to the adulterous act or attempted act, unsupported by other evidence tending to establish that the defendant attempted to engage with the other party in sexual intercourse, and that the defendant or the other party had a living spouse at the time of the adulterous act or attempted act.
We’d love to know more about so-called “other evidence.” Actually, we’d love to know more about what constitutes an “attempt to commit adultery.” Any New York adultery attorneys out there?