In the halls of the New York State Capitol, with a budget deadline bearing down, it seems that all that anyone wants to talk about is adultery.
An antiquated but seldom-enforced state law categorizes adultery as a crime, and past efforts to repeal it have gone nowhere. But that seems poised to change.
The Assembly overwhelmingly voted in favor of a bill to repeal the adultery law last month, and a Senate committee last week moved a matching bill to the floor for a full vote that could come as soon as this week.
The developments have attracted global attention, with the Assembly bill’s sponsor, Charles Lavine, a Democrat from Long Island, fielding interview requests from Europe to South America.
“Any criminal law that penalizes intimate behavior between consenting adults does not deserve to be on the books,” said Mr. Lavine, who added that he has been “happily married” for 54 years.
While adultery is still illegal in a handful of states (in Oklahoma, Michigan and Wisconsin, adultery is considered a felony offense), the vast majority of states repealed their adultery laws long ago or never outlawed it in the first place.
New York’s law declares a person guilty of adultery “when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse,” according to New York’s penal code. Adultery is classified as a Class B misdemeanor, and it is punishable by up to 90 days in jail and a $500 fine.
The push to decriminalize adultery is about more than updating the penal code to reflect modern values, Mr. Lavine said. He viewed recent events, including an Alabama judge’s ruling that frozen embryos in test tubes are children and the Supreme Court’s 2022 decision rejecting the constitutional right to an abortion, as evidence of a growing political desire to foist governmental oversight on sex and chip away at Americans’ assumed right to privacy.
“We are all in danger of losing our rights,” Mr. Lavine said. “Those most likely to be prosecuted for this crime, not only in New York, but throughout the United States and even worldwide, are women. I think it’s time for our state legislatures throughout the United States to stand up for human rights. And women’s rights are human rights.”
This isn’t the first time New York has been slow to update laws regulating marriage and sex. In 2010, New York was the last state to adopt no-fault divorce — allowing couples to dissolve marriages without requiring proof of adultery, cruelty, imprisonment or abandonment — nearly 40 years after California was the first to do so. And it wasn’t until 2021 that state lawmakers officially disavowed child marriage and raised the legal age of consent to marry to 18.
When New York first outlawed adultery in 1907, it was common for states to pass laws criminalizing sex outside of marriage, according to Jill Hasday, a professor at the University of Minnesota Law School who has studied how the law regulates deception within romantic, sexual and family relationships. These laws technically applied to everyone, Professor Hasday said, but they were often used to target women and L.G.B.T.Q. people.
Just a few weeks after the law went into effect, a married railroad contractor and a 25-year-old woman he was seeing were the first people arrested and charged with adultery, according to a 1907 New York Times article.
New York lawmakers have tried to overturn the adultery ban since at least 1964, when a legislative commission found enforcement of the state’s adultery ban to be virtually impossible and “a matter of private morality, not of law.”
But the law has remained in place, and at least 13 people have been charged with adultery in New York since 1972, according to Mr. Lavine.
The most recent case arose in 2010, when a 43-year-old married woman was arrested after engaging in a sex act with a man who was not her husband at a public park in Batavia, N.Y. Both of them were charged with public lewdness, but only the woman, Suzanne Corona, was charged with adultery, said Brian Degnan, the lawyer who represented Ms. Corona.
A media frenzy descended onto Ms. Corona, Mr. Degnan said, and her mug shot was published in news outlets around the world.
“She couldn’t go anywhere in town without people whispering,” Mr. Degnan said. “She was living her life under a microscope when she just wanted to be left alone.”
Though adultery charges have always been rare, the law was occasionally used as justification in divorce proceedings in the years before New York adopted no-fault divorce, Mr. Degnan said.
“It’s embarrassing that this is still on the books,” Mr. Degnan said. “Even in law school, everyone burst out laughing every time it came up.”
But when the law is enforced, it can be used to target and embarrass women, as illustrated by Ms. Corona’s experience.
“Whose right to privacy was infringed on?” Mr. Degnan said. “Whose marriage was put on display in the media?”
Professor Hasday suggested that women accused of infidelity tend to face harsher social consequences than men.
“What do you call a husband whose wife has had sex with someone else? You call him a cuckold,” the professor said. “What do you call a wife whose husband has had sex with someone else? You call her a wife. We still have this idea that adultery is particularly this wrong against a man.”
Society has adopted far more liberal views on sex and marriage since the early 20th century when New York’s adultery ban was adopted, the professor added, but the pendulum has begun to swing in the other direction. For example, she said, some states revived old abortion bans after the Supreme Court struck down Roe v. Wade, the decision that established a constitutional right to an abortion.
The Supreme Court has never taken a case related to a state’s anti-adultery law, but many people have argued such laws are unconstitutional based on the court’s 2003 ruling in Lawrence v. Texas. That decision struck down a law criminalizing sodomy and ruled that Americans had a constitutional right to privacy.
But in 2022, Justice Clarence Thomas wrote that the court should reconsider other cases related to marriage and sex, including Lawrence v. Texas.
“We’re in a moment when many legislators’ attention has been primed to look at the regulation of sexuality and reproduction,” Professor Hasday said. “States seem to be veering into very diverse directions.”
Mr. Lavine said any criticism he’s received for his role in sponsoring the Assembly bill to repeal the adultery law has been limited to a few “religious nuts.”
“This is not the first time that I will have been called a heretic,” he said, laughing.
He added, “You can’t punish one person’s personal view of what is moral, and that’s all this law does.”
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