Op-Ed: Why is adultery still a crime?

One of the curiosities of America’s current presidential campaign is that the Republican front-runner is a self-confessed serial adulterer, yet few conservative voters seem to care. In “The Art of the Comeback,” Donald Trump bragged about his sexual experiences with “seemingly very happily married and important women.” That so many people aren’t holding it against him suggests a tolerance that should be better reflected in our laws and policies.

Adultery is illegal in 21 states, including New York, where Trump lives. In 2008, the issue came briefly to popular attention when the state’s governor, David Paterson, acknowledged at a news conference that he had had several extramarital relationships but claimed that he “didn’t break the law.” A follow-up story in the New York Times began “Well, actually….” Adultery, it turns out, is a misdemeanor in New York, punishable by a fine of $500 or 90 days in jail.

Adultery is rarely prosecuted as a criminal offense, but when it is, the arbitrariness of enforcement erodes confidence in the rule of law and unfairly singles out those blindsided by the charge. When a 2004 affair ended badly in Virginia, one of the states where infidelity is still illegal, the “other woman” went to the police. Her lover pleaded guilty. He cleared his record with community service, but he lost his job. In defending the charges, the prosecutor claimed, “We’re not out beating the bushes and certainly we’re not peeking in windows. However, in this case, it was thrown in our face.”

More common than criminal prosecutions for adultery are job terminations, sanctions or demotions. The military can discharge or prosecute soldiers for infidelity, and courts have permitted dismissals or discipline of police officers, librarians, fire department employees, and FBI trainees based on marital infidelity that had no demonstrable connection to their job performance. Adultery also figures as a factor in allocating property and custody in divorce cases, although it isn’t necessarily relevant to parental fitness or financial need.

A few states even permit aggrieved spouses to sue paramours for alienation of affection. “You’ve got to be kidding me,” said a 61-year-old Chicago man sued on that ground. “Is this thing for real?” In another celebrated 2010 case, a jury ordered a woman who had broken up a long-standing marriage to pay $9 million in damages.

There is no evidence that a decline in legal sanctions would result in an increase in adultery. According to the best available research, somewhere between 19% and 23% of men, and 14% to 19% of women report being unfaithful at some point in their marriage, a rate substantially lower than in 1950 when Alfred Kinsey conducted the first studies. Legal prohibitions persist largely for symbolic reasons.

As legal scholar Thurmond Arnold observed three-quarters of a century ago, “Most unenforced criminal laws survive in order to satisfy moral objections to our established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.”

Two decades ago, opponents of decriminalization in Connecticut claimed it would turn the state into a “moral wasteland.” In 2009, the executive director of Cornerstone Policy Research opposed repeal of the state’s criminal statute saying such an action would “diminish … the harmful effects of adultery.”

Yet no evidence suggests that repealing prohibitions on marital infidelity in Connecticut (in 1991) or in New Hampshire (in 2014) has had the corrosive consequences that opponents have predicted. At the same time that legal sanctions for adultery have declined, social disapproval has increased. In 2013, over 80% of Americans said that adultery is “always wrong,” compared with 70% in 1979.

Despite this strong condemnation, however, most Americans — typically between two-thirds and three-quarters of those surveyed — don’t think adultery should be a crime. Nor do they think it disqualifies a person from being president (72%), a CEO (72%), a member of Congress (66%) or a military general (64%).

The law needs to catch up. There are, to be sure, strong reasons to disapprove of adultery. It can have devastating consequences for spouses and children. But the steady recurrence of infidelity suggests the ineffectiveness of trying to use legal sanctions and workplace penalties to prevent infidelity. Legislatures should repeal criminal prohibitions and alienation of affection statutes, and where legislatures decline to act, courts should strike down adultery penalties as an infringement of constitutionally protected rights of privacy. There are better ways to signal respect for marriage and better uses of resources than policing private consensual sexual activity.

A time-honored joke recounts how Moses came down from his mountain meeting with God and announced, “I have some good news and some bad news. The good news is that I bargained him down to only 10 commandments. The bad news is that adultery stays in.” For centuries, law sought to shore up that commandment with criminal and civil penalties. It is now an anachronistic, intrusive and misdirected effort.

Deborah L. Rhode is a professor of law at Stanford University and the author of “Adultery: Infidelity and the Law.”

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