Several state legislatures statutorily prohibit adultery as a crime. Under some statutes, both parties to an adulterous relationship are guilty of a crime if either of them is married to someone else. Other statutes provide that the act is criminal only if the woman is married.
Under the law of many states, a single act of adultery constitutes a crime, whereas in others, there must be an ongoing and notorious relationship. The punishment set by statute may be greater for an individual who engages in repeated acts of adultery than for one who commits an isolated act.
Defenses An individual who has been charged with committing adultery may have a valid legal defense, such as the failure or physical incapacity to consummate the sex act.
A woman is not guilty of adultery if the sex act resulted from rape. Some states recognize ignorance of the accused regarding the marital status of his or her sexual partner as a defense. In a few jurisdictions only the married party can be prosecuted for adultery. If the other party to the relationship is not married, he or she may be prosecuted for fornication instead of adultery.
Initiation of Criminal Proceedings Under some statutes, a prosecution for adultery can be brought only by the spouse of the accused person although technically the action is initiated in the name of the state. Other states provide that a husband or wife is precluded from commencing prosecution for adultery since those states have laws that prohibit a husband or wife from testifying against his or her spouse. In such states, a complaint can be filed by a husband or wife against the adulterous spouse's lover.
Evidence Customary rules prescribe the types of evidence that can be offered to prove guilt or innocence. There must be a showing by the prosecutor that the accused party and another named party had sexual relations. Depending on state statutes, the prosecutor must show that either one or both parties to the adultery were wed to someone else at the time of their relationship.
Evidence that the defendant had the chance to have sexual relations coupled with a desire, or opportunity and inclination, might be sufficient to prove guilt. Photographs or testimony of a witness who observed the couple having sexual intercourse is not necessary. The fact that a married woman accused of adultery became pregnant during a time when her husband was absent might be admissible to demonstrate that someone other than her spouse had the opportunity of engaging in illicit sex with her.
Letters in which the accused parties have written about their amorous feelings or clandestine encounters may be introduced in court to support the assertion that the parties had the inclination to engage in sexual relations. Character evidence indicating the good or bad reputation of each party may be brought before the jury. Evidence of a woman's sexual relationships with men other than the party to the adultery generally cannot be used; however, if her reputation as a prostitute can be demonstrated, it may be offered as evidence.
Suspicious activities and incriminating circumstances may be offered as CIRCUMSTANTIAL EVIDENCE.
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