Adultery

History

Common law had it that adultery was not a crime unless the conduct was flagrant, in which case it was a public nuisance. Canon law in England provided for punishment by the church after consideration by the ecclesiastical court. Under ecclesiastical law, only a married person could be guilty of adultery.

The core of the crime in the ecclesiastical courts was breach of the marriage vow. Intercourse between two married people not married to one another meant both were guilty of adultery. If only one party was married, that person was guilty of adultery and the partner was guilty of fornication.

Common law recognized the wrongfulness of such activity at least when the woman was the married party, because of the danger of questionable offspring and the introduction into the family of an illegitimate heir. Accordingly intercourse between a married woman and any man other than her husband constituted adultery. If the woman was unmarried, neither party was guilty of adultery even if the man was married.

Contemporary Status

Adultery today is considered a private matter and all but overlooked by law enforcement. Nonetheless in many states it remains on the books as a violation, usually a misdemeanor. While statutes vary, the definitions can be traced to the early development of laws on the subject in the ecclesiastical and common law courts.

In some states, intercourse between two married persons not married to one another constitutes adultery on the part of both; in situations where one party is unmarried both are still guilty. In other states, if both parties are married to others both are guilty, while if one party is unmarried that party is guilty of fornication and the married partner of adultery.

In other states intercourse is adultery only when the woman is the married party. In this instance intercourse between a married woman and any man other than her husband, constitutes adultery by both parties. If the woman is unmarried, there is no adultery even if the man is married.

In some states, adultery is committed only when the intercourse is ‘open and notorious'. Some states may only prosecute adultery when a complaint is filed by the aggrieved husband or wife. There can be no conviction based solely on the testimony of the complainant; additional evidence must be at hand. In Minnesota, action may be taken only up to one year after commission of the act.

In states where an unmarried person may commit adultery, the courts have differed as to whether the claim of ignorance of the other party's marital status is a valid defense. It is not a valid defense that the woman is a prostitute or that the adultery was committed with the connivance of a spouse. Adultery requires only a single act of intercourse: multiple acts constitute multiple offenses. Although force may be involved in the act – which may amount to rape – force does not preclude the charge of adultery.