Cheating on your spouse may become legal as bill would end adultery ban

For more than a century, it has been a crime to cheat on your spouse in New York.

But adultery soon may be legal in the Empire State, thanks to a bill working its way through the Legislature, which finally would repeal the seldom-used law that is punishable by up to three months behind bars.

Adultery bans are still on the books in several states across the U.S., although charges are rare and convictions even rarer. They traditionally were enacted to reduce the number of divorces at a time when a cheating spouse was the only way to secure a legal split.

Adultery, a misdemeanor in New York since 1907, is defined in state code as 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.”

Only about a dozen people have been charged under New York’s law since 1972, and of those, just five cases have netted convictions, according to Assemblyman Charles Lavine, who sponsored the bill to appeal the ban.

Lavine says it’s time to throw out the law, given that it’s never enforced and because prosecutors shouldn’t be digging into what willing adults do 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.

Katharine B. Silbaugh, a law professor at Boston University who cowrote “A Guide to America’s Sex Laws,” said adultery bans were punitive measures aimed at women, intended to discourage extramarital affairs that could throw a child’s parentage into question.

“Let’s just say this: patriarchy,” Silbaugh said.

Most states that still have adultery laws classify them as misdemeanors, but Oklahoma, Wisconsin and Michigan treat adultery as felony offenses. Several states, including Colorado and New Hampshire have moved to repeal their adultery laws, using similar arguments as Assemblyman Lavine.