NYS Senate gives final approval to repeal of 117-year-old adultery law

ALBANY – New York’s Legislature on Wednesday gave final legislative approval to repeal a 117-year-old law that makes adultery a crime with a sentence of up to 3 months in jail.

People have rarely been charged with the misdemeanor, perhaps just around a dozen times over more than a century, but supporters say the law remained a concern.

In one case, a Batavia woman was charged with the misdemeanor after someone made a report to police of seeing her engaged in sex with someone other than her husband. That was in 2010. The woman pleaded not guilty and the charge was later dropped, but only after she and her family were the subjects of national news.

“This should not be a violation of law because all it does is punish human nature,” said Assemb. Charles Lavine (D-Glen Cove), the Assembly sponsor of the bill. “Criminalization of consensual conduct between adults is a violation of human rights.”

Gov. Kathy Hochul had no immediate comment on whether she would sign the measure into law.

On Wednesday, the State Senate passed the bill sponsored by Sen. Liz Krueger (D-Manhattan) by a 57-4 vote, without debate. The Assembly  passed the measure 137-10 on March 11. State lobbying records also showed no focused effort against the bill.

New York penal law states: “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.” The law applied to men and women, but the law was written when women weren’t specifically noted in most laws.

Although the bill died in committee from 2019 through 2022, it sailed through the legislative process since late February in the Democratic-controlled Legislature.

The bill states: “The state has no business regulating the consensual sexual behavior between adults. It is long-past time for us to remove this statute from the penal law.”

There is a political element, too. Democratic supporters say repeal of the old law is spurred by current political concerns that it could be weaponized by a conservative majority in the Supreme Court or a Republican Congress based on their religious or conservative moral code.

“Anything that advances demagoguery is something we have to fight against,” Lavine said.

New York state was one of the few states that didn’t outlaw adultery in the 19th century, said Carol Faulkner, a history professor at Syracuse University and author of “Unfaithful Love: Adultery, and Marriage Reform in Nineteenth-Century America.”

But in 1907, the state criminalized adultery because it sought to stop false or trumped-up claims of adultery to simply qualify for a divorce. At the time, adultery was the only cause allowed under state law to obtain a divorce.

Today, adultery laws “are outdated, they don’t reflect the changing view of marriage,” Faulkner told Newsday. “The idea that we are policing what’s going inside a marriage is outmoded.”

Civil rights groups report that 17 states, mostly in the South and in conservative areas, have adultery laws, some of which are felonies. But adultery is rarely charged in those states. Five states have repealed adultery laws in the last decade.

The U.S. Supreme Court in 2003 eroded the legal footing of adultery laws in striking down a Texas law against gay sexual relations. That decision stated: “Individual decisions concerning the intimacies of physical relationships … are a form of ‘liberty,”’ the court decision states. People have “the full right to engage in private conduct without government intervention.”

In New York, Lavine said he’s felt a backlash of hateful emails and calls opposing repeal based on what they say are their religious beliefs.

“I think there’s a bigger issue here,” Lavine said. “I think it’s time for all of us to stand up for human rights.”

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.