Addressing An Archaic Law On The Books

Bill from Assemblymember Charles Lavine would decriminalize adultery

Did you know that in New York State, adultery is illegal?
Sure, most people would agree that cheating on a spouse is immoral. But, a 2012 position paper from the United Nations working group on discrimination against women and girls stated that it should not be regarded as a criminal offense punishable by fines, imprisonment and, in some countries, even death.
“Treating adultery as a criminal offense is a violation of women’s rights to privacy, infringing the International Covenant on Civil and Political Rights,” the working group stated. “It is also a violation of [Convention on the Elimination of All Forms of Discrimination Against Women’s] prohibition of discrimination in the family.”
In New York State, a person is guilty of adultery, a class B misdemeanor, when they engage in sexual intercourse with another person at a time they have a living spouse or the other person has a living spouse. A class B misdemeanor can land someone in jail for at most three months, plus surcharges and fees. Because it is a class B misdemeanor, the person charged would not be entitled to a jury trial, where they’d have the opportunity to challenge the evidence or provide their side of the story to their peers.
Assemblymember Charles Lavine (D-North Shore)introduced A.4714, a bill to decriminalize adultery. It passed in the New York State Assembly on March 11, 2024. Ten voted against the bill, while 137 voted in favor.

“I suppose that some of them, not all of them… are afraid that their constituents may point a finger at them and accuse them of condoning ‘immoral’ conduct,” Assemblymember Lavine said when asked why he thought some Assemblymembers voted against it. “Others who voted against this bill would just as soon prefer to live in a religious state.”
The New York State Senate version of the bill, S8744, sponsored by New York State Senator Liz Krueger, is currently being considered by the Senate Codes Committee.
If the bill passes in the Senate, and is approved by Gov. Kathy Hochul, it will go into effect immediately.
Assemblymember Lavine explained that he learned that adultery was a crime when his colleague, former Assemblymember Dan Quart, introduced the bill during the 2019-2020 Legislative Session.
“The fact that we have on our books, in our New York State Statutes, a law that is used primarily to target women and that has been the history here and elsewhere, as throughout the world actually, made no sense and it was time to get rid of it,” Assemblymember Lavine said.
According to Assemblymember Lavine, adultery has been illegal in New York since 1907. Since 1972, 13 people have been prosecuted for adultery, the most recent arrest for it taking place in 2010. Of those charged, only five have been convicted of the crime. In most of the cases, another crime had been committed.
Assemblymember Lavine explained that despite the law being in effect since 1907, it hasn’t served as a deterrent, as adultery is still common.
According to Assemblymember Lavine, in the late 1960s, the New York State Law Review Commission re-codified the criminal procedure law and the penal law. It recommended that adultery should not be a violation of criminal law. Nothing was done at the time.
The 2003 landmark United States Supreme Court case, Lawrence v. Texas, made same-sex sexual activity legal, overturning a previous ruling from the Supreme Court, Bowers v. Hardwick, which did not find a constitutional protection of sexual privacy.
Lawrence v. Texas, according to the Cornell Law School Legal Information Institute, explicitly held that intimate, consensual sexual conduct was part of the liberty protected by the substantive due process under the Fourteenth Amendment,
“We have to protect our citizens, and rights matter,” Assemblymember Lavine said. “This is especially the case because those of us who believe in rights, and that should be the core American value, are still reeling from the Supreme Court outlawing abortion in the [Dobbs v. Jackson Women’s Health Organization] decision. Now they’ll say, ‘they didn’t outlaw it, they just left it to the states.’ But we’re not stupid. We see what all these states have done. And we know that it’s just a matter of time before this well-financed special interest group that wants to legislate morality starts to spend tons of money to run against those of us who believe in and fight for rights.”
In 2017, Alda Facio, Chair-Rapporteur of the United Nations Working Group on the issue of discrimination against women in law and practice, wrote a letter to the United States government calling for the review of state criminal laws and the removal of all provisions that discriminate against women or have a discriminatory impact on women.
At the time of the letter, 21 states had laws that criminalized adultery. Penalties of the conviction, country-wide, could include fines and terms of imprisonment for up to four years.
“Our group has noted that the enforcement of such laws leads to discrimination and violence against women in law and in practice and has stressed that while criminal law definitions of adultery may be ostensibly gender neutral and prohibit adultery by both men and women, closer analysis reveals that the criminalization of adultery is both in concept and practice overwhelmingly directed against women and girls,” Facio wrote in the letter.
The working group also believes that criminalization of sexual relations between consenting adults should be regarded as interference with privacy and is in violation of Article 17 of the International Covenant on Civil and Political Rights, which provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor unlawful attacks on their honor and reputation.
“In addition, we would like to express our concerns that the criminalization of adultery contravenes Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women by reinforcing social and cultural patterns that are based on prejudice and stereotyped roles for men and women,” Facio stated. “We are concerned that such discriminatory legislation may exacerbate gender-based violence, as women who are accused and/or convicted of adultery tend to be targets of violence and abuse by members of family, community or law enforcement officers due to a belief that they deserve to be punished for their moral crimes.”
The United States government, in its response, disagreed with the factual and legal assertions in the letter:
“Moreover, adultery laws in the United States must be understood within the context of American federalism, whereby matters for which the U.S. Constitution does not vest responsibility in the Federal Government are reserved to the states. As a result, states have broad powers to regulate their own general welfare, including enactment and enforcement of criminal laws, as well as marriage and family laws.”