In 2018, the Maryland legislature is expected to consider a Bill to decriminalize adultery. We are all familiar with adultery as an historic ground for divorce, or a factor to be considered in determining the cause and consequences of the breakup of the marriage, but few are aware that in many jurisdictions adultery also is a crime. One reason for this lack of knowledge may be that almost never, if ever, is it prosecuted. Just how much of a crime is adultery; and should it be removed from the criminal law of Maryland?
Adultery, although almost universally condemned as immoral, was not a crime at common law. However, reflecting societal views, it became a statutory crime in the United Kingdom, and in various States of the United States. Then in the second half of the 20th Century, following, at least in time, the revelations of the Kinsey and Hite reports about the prevalence of extramarital sexual relations, the laws began to change. Today, adultery is not a crime in the United Kingdom and in many States. Where it is a crime, the consequences can vary widely. Michigan and Wisconsin, for example, classify adultery as a felony. In New York, it is a Class B Misdemeanor punishable by up to 90 days in jail and a $500 fine. Under the Uniform Code of Military Justice, adultery can result in a dishonorable discharge and up to one year of confinement. The Code of Virginia lists adultery as a “Crime involving Morals and Decency,” and prescribes sexual intercourse between any married person with anyone other than her or his spouse as a Class 4 Misdemeanor, punishable by a fine of up to $250. In Maryland, the crime seems to be treated almost as trivial, being classified as a misdemeanor punishable by a fine of $10. (Neither Virginia nor Maryland clarify whether the punishment can apply more than once per partner!)
Some insight into the changing character of adultery as a crime can be gained from looking at the District of Columbia. Through most of the 20th century, adultery was recognized in the District of Columbia is a serious crime. However, since it relied on the common-law definition of adultery derived from decisions in divorce matters, a single woman could not commit adultery while a single man could be if he had sexual relations with a married woman. (Speculation as to the reason for this difference was that it protected the mistresses of the rich and powerful from being charged with a crime! This discrepancy led to finding of an unconstitutional discrimination against men. The solution in the District of Columbia was the Anti-Gender-Discriminatory Language act of 1994. This did nothing to eliminate adultery as a crime but made it applicable to all persons equally. But the times were changing rapidly and by only 2003 a new statute called the “Elimination of Outdated Crimes Amendment Act” repealed adultery as a crime. Presumably, the advocates for repealing the crime in Maryland are thinking similarly that it is outdated.
In a survey in the United States, 22% of married men and 14% of married women self-reported having had at least one extramarital affair, and the authors of the study think those numbers may be low. In a recent scandal resulting from hacking of the Ashley Madison website, 37 million Americans were reported as having used the website. Notwithstanding these statistics, 90% of Americans are reported to believe that adultery is wrong, while only 61% state that it should be punished as a crime. A substantial number of Americans voted for Donald Trump, a man who acknowledged adultery in “the Art of the Comeback.”
Thus, there seems to be an evolving sense that adultery need not have the consequences formally associated with it. This gets us back to the original question, should the law be repealed in Maryland?
I could find no prosecution for adultery in Maryland, nor have I spoken with any attorney who was involved in such a case. That seems to be a solid reason for eliminating an unnecessary law. However, the law is regularly cited in divorce cases by litigants who are asked to reveal all concerning their possible sexual liaisons outside of the marriage. Both Article 22 of the Declaration of Rights of Maryland and the Fifth Amendment to the Constitution of the United States permit a person to refuse to answer questions that might lead to conviction of a crime. So long as adultery is a crime, explorations into an individual’s sexual history can be deflected by refusal to answer. That does not mean in a civil case, an inference cannot be drawn from the refusal. In fact, it has been recognized that one can infer that a truthful answer if given would have been harmful to the person declaring his or her rights. (In a criminal case, no such inference can be drawn.) Is there value, then, in having this “crime” on the books? This is a question, I believe, that would be answered in the affirmative by anyone who has sat through a deposition being taken of a miscreant spouse by counsel representing an angry, hurt spouse who wants to embarrass and inflict harm upon not just his or her spouse, but the partner in adultery. “Pleading the Fifth” is a simple and effective way of preventing unnecessary sleaze without depriving the wronged spouse of his or her right to point to the adultery.
Until there is a demonstrable harm from having adultery be a crime, I advocate that this small amount of protection for privacy in intimate personal matters be retained.