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The New York Senate will decide the fate of a bill that would, after 117 years, decriminalize adultery in the Empire State.
Assemblymember Charles Lavine, a Democrat, sponsored A.4714, which unanimously passed through the Codes Committee, then passed the full Assembly on Monday by a vote of 137-10. The text of the bill is only two lines long and mandates an immediate repeal of New York State Penal Law § 255.17.
That law, titled simply, “Adultery,” makes it a class B misdemeanor when a person “engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.” The law has been on the books since 1907. In New York, Class B misdemeanors carry potential sentences ranging from fines and community service to 90 days jail time.
Lavine said that it is “long past time” to remove the “archaic” statute from the state’s penal code. He added that the law, which, “criminalizes sexual behavior between consenting adults,” is rarely enforced and argued, “If a law is not enforced, there is no reason it should be maintained.”
Since 1972, 13 people have been charged with adultery under New York’s statute, Lavine’s office says. Five were convicted, and almost all were cases in which the defendant committed other crimes in addition to adultery.
The criminal adultery statute was controversial from its inception. Divorce attorney S.N. Tuckman argued in a 1907 letter to the editor published in the New York Times just days before the statute would go into effect that the law’s purpose would have been better served by amending divorce laws — not criminalizing adultery.
In his letter, Tuckman explained the problematic interplay between adultery as grounds for divorce and adultery as a crime in context. At the time, adultery was the only ground on which an “absolute divorce”— the 1907 version of what today would be called an “uncontested” divorce — could be granted. The statute criminalizing adultery was intended to put an end to “collusive” divorces in which the parties work together to satisfy the necessity of proving grounds for divorce, said Tuckman. By criminalizing the very conduct required to get a divorce, it discouraged parties from pleading that particular ground as the basis of the dissolution of their marriage.
Indeed, there is a long legal history in the United States of favoring marriage and discouraging divorce. Today, however, “collaborative divorce” is generally viewed as a practical and efficient way to dissolve a marriage without the need for protracted litigation when both parties agree it is time to end their marriage.
In a 2008 New York Times piece, noted New York divorce attorney Raoul L. Felder, who represented high-profile clients such as Rudy Giuliani, remarked that over his decades in practice, many angry divorce clients have demanded that he refer their spouse’s infidelity for criminal prosecution as a means of exerting leverage in their matrimonial litigation.
At the time, Felder said, “Adultery is the last symptom of the disease. It’s not the disease.”
Adultery remains a viable — though unnecessary — ground for divorce in New York State. Parties are permitted to file for “no-fault” divorces, or those that do not require parties to prove any particular reason for the breakdown of the marriage. A party who still chooses to file for divorce on the basis of adultery must undertake the prove that adultery occurred, either by consent of the other spouse or by other clear and convincing evidence.
The bill next moves to the New York State Senate for consideration. The 10 assemblymembers who opposed the bill included two Democrats and eight Republicans.
