Sex Offenses: Consensual

As the twenty-first century begins, adultery is still a crime in approximately half of the United States, and fornication is a crime in about one-third of the states. Reflecting the Victorian compromise, however, a substantial minority of the adultery statutes require a degree of visibility to the conduct, requiring the adultery to be habitual or open and notorious, or accompanied by cohabitation. Likewise, a majority of fornication statutes also require that the conduct be in some sense open and notorious.

The elements of fornication are straightforward: either it requires open and notorious cohabitation, or it is defined simply as intercourse between two unmarried people, depending on the jurisdiction. In almost every state where it's prohibited, the crime is a misdemeanor carrying a trivial punishment. The elements of adultery are more varied. Adultery was originally an offense punished by ecclesiastic law in England, and became a secular offense in the United States as an incident of Puritanism. The elements of the offense in its original form at common law, however, reflect a goal of preventing men from raising and providing inheritance to offspring who are not their own. The offense protected against the corruption of bloodlines. Therefore, it was an offense that married women could be convicted of when they engaged in sex with a man not their husband, but not an offense for married men. Minnesota's adultery statute takes this form even at the dawn of the twenty-first century, but it is alone in this sex-specific language, which would probably not survive a gender-based constitutional challenge. The ecclesiastical courts, however, punished any married person, male or female, for sex with someone other than a spouse. The remaining states now follow this lead, although they vary as to whether they can punish only the married party to adultery, or both parties even where one is single. In a few states, only a criminal complaint by the aggrieved spouse can lead to a prosecution for adultery. Adultery is also a misdemeanor in the majority of states where it is prohibited, but a few felony classifications remain. Ample Supreme Court dicta suggests that these laws are constitutional.

Of all of the statutes governing consensual sexual conduct, adultery and fornication are the most complete dead-letter crimes, meaning nonenforcement is the most long-standing and pervasive. The Model Penal Code recommends against criminalizing this conduct altogether, and nonenforcement preceded the sexual revolution of the 1960s. However, these statutes still have a force in the law. The abuses that can accompany dead-letter statutes are in play with each. Those include selective prosecutions, use of these statutes in place of crimes that are more difficult to prove, and most commonly, reference to these statutes as an excuse for civil law discrimination.

There are rare selective prosecutions of these crimes. For example, one prosecutor in the mid-1990s used a fornication statute to prosecute the sex partners of pregnant unwed teenagers. The statutes are more commonly used when prosecutors are interested in a more serious crime, but are not certain they will succeed on all of the elements of that crime. For example, a prostitution charge against a john could also be an adultery or fornication charge, and the exchange of money would not need to be shown. The threat of this kind of prosecution can be used to induce a potential defendant to testify against a prostitute on the prostitution charge. An adultery or fornication charge can also accompany a sexual assault charge where some difficulty of proof accompanies the more serious charge. In those rare adultery or fornication charges that still occur, there is some explanation of this sort that goes beyond the crime itself, as when the adultery occurs in a public place.

The most significant application of these statutes, however, does not come in the form of criminal prosecution at all. Rather, these statutes are cited in civil cases as a justification for action against the offender, who by violation of an adultery or fornication statute is considered a criminal despite the lack of prosecution. For example, fornication statutes have served to excuse landlords who violate housing discrimination laws, with courts agreeing that the landlord need not rent to criminals. Or fornication and adultery charges may justify child custody awards that disfavor presumed criminals. Since the 1980s, however, fornication and adultery statutes have been invoked less frequently in child custody cases than they were prior to that time, and have had little effect on the outcomes of custody cases. Finally, adultery is a ground for divorce in many states today. Prior to the no-fault divorce revolution of the 1970s, adultery was routinely litigated in family courts as the ground for a fault-based divorce. But the no-fault revolution has not extinguished its use in divorce cases. In a number of states, though the no-fault ground of irreconcilable differences is used in most cases, adultery still exists as an alternative ground for divorce. It is still regularly used as the ground for divorce either because a state grants a faster divorce on the ground of adultery than on the ground of irreconcilable differences, or because the state is one of the minority that takes adultery into account in dividing property or awarding alimony.

Finally, military law is authorized to punish adultery among military personnel severely. Historically, the military looked the other way on completely private cases of adultery. But in the late 1990s, a flurry of high-profile adultery prosecutions in the military led to the dismissal or reduction in rank of several military officers, and generated public discussion of adultery laws, without leading to repeals. This discussion illustrated the extent to which these dead-letter laws are not quite dead.