Adulterers can't catch a break

Adulterers can’t catch a break (Image: Jules Arsène Garnier/Wikimedia)

Prudishness is one of America’s founding principles, and while today we might think we are modern and enlightened, two of the biggest news items at this moment are about adultery. It’s now possible find out exactly which government officials and which hypocritical reality TV stars were members of AshleyMadison.com, the dating site for married people. Meanwhile, tabloids are finding it difficult to move on from covering Ben Affleck’s apparent sex with his childrens’ nanny. The reality is that we still care much too about other people’s sex lives, and we’re judging. Hard.

Things have changed a bit, though. Historically, that judgment happened not just in gossip sessions and internet publications, but in court.

Adultery is still a criminal offense in 21 states in the U.S. Usually it’s a misdemeanor, but in some states the punishment can include fines up to $3,000 or prison time—up to three years, in Massachusetts. But with courts striking down laws that regulate private sexual activity, these laws have come to seem outdated. If they were to be challenged on constitutional grounds today, it’s more likely than ever before that they’d be struck down. They persist in part because police and prosecutors have basically given up on enforcing them.

But just a few decades ago, Americans were still being sent to jail for having sex outside of their marriages—until, rather suddenly, criminal prosecutions of adultery more or less disappeared. What changed? Why did the American legal system suddenly stop prosecuting this particular type of sex? And who were the last unfortunate people who were not just shamed for committing adultery, but jailed for it?

Looking into the history of these laws, it’s clear that they were not just used to punish married adults for sleeping together. Instead, they were used to enforce more specific social norms around sex and, sometimes, race—how much sex society could tolerate at different points in American history and who, exactly, was allowed to sleep with whom.

Ashley Madison membership aside, in this day and age it’s challenging to build a criminal case for adultery. The standards for proof are high, much higher than they used to be. “In the past, if two people were found in a house and one person was in pajamas and there was only one bed, that’d be enough,” says JoAnne Sweeny, an associate law professor at the University of Louisville. “In more modern cases, you basically have to watch them have sex.”

That’s how one 41-year-old woman in upstate New York ended up charged with adultery just five years ago. One evening in the summer of 2010, she was at a local park with a 29-year-old man, allegedly having sex on a picnic table. When the police arrived, they were both charged with public lewdness; The woman, who was married, also had the adultery charge tacked on and faced the possibility of 90 days in jail or a $500 fine. Initially, she said she’d fight the constitutionality of the law, yet soon her lawyers organized a plea deal in which the adultery charge was dropped.

But if she had pursued a constitutional challenge, she may have won: in the wake of Lawrence v. Texas, the 2003 decision that struck down Texas’ anti-sodomy statute, lawyers have started wondering if these laws would survive modern judicial scrutiny. As recently as the 1980s, though, a state supreme court found that laws criminalizing adultery could stand.

In the fall of the 1980, two Worcester police officers spotted a local woman signaling to the male driver of a van. He stopped; they talked; she got in. The officers began following the van as it went a short distance and pulled down a dirt road, that led to a factory. When they found the van, they peeked into the rear window, and saw the pair having sex.

They were both charged with adultery and fined $50. But the woman fought the charge on constitutional grounds, arguing that the law violated her right to privacy. She ultimately lost: the Massachusetts Supreme Judicial Court decided that “the State has a legitimate interest in prohibiting conduct which may threaten the institution [of marriage].” They found the law to be constitutional.

But it’s possible that the real use of the law in this case was essentially the same as it’s always been—not to protect marriage, but to enable state-sanctioned slut shaming. Why, after all, were the Worcester police officers watching the woman to begin with? In the Boundaries of Desire, a new book on America’s sex laws, Eric Berkowitz gives a hint: he describes her as “a married Massachusetts woman who moonlighted as a streetwalker.” The problem, perhaps, was not just that a married person was having sex but that she was violating another type of societal stricture. 

The enforcement of adultery and fornication laws has never really been about the specific crime committed. They are connected, instead, to the milieu of the time. Some older fornication cases, for instance, were really dealing with rape (albeit badly). And in her study of adultery laws, Sweeny found that enforcement began increasing quite sharply in the second half of the 19th century, just up until the 1910s. “If you look at the time period where it’s really peaking, that’s Victorian times,” she says.

When sex was one of society’s largest concerns, policing of sexual acts increased. But once the Great War started, people had bigger worries than a little bit of extramarital sex. “It’s hard to really know,” says Sweeny, “but from the research I’ve done, I think society’s priorities changed.”

The American judicial system never recovered its early enthusiasm for prosecuting adultery, but there was one last, smaller peak in the wake of World War II, before adultery prosecutions started dwindling for good in the ’70s and ’80s. It seems like the last decade in which American judges sent people to jail for notable amounts of time was probably the 1950s.

In 1955, a North Carolina judge sent a woman named Janie Bell Weeks to jail for two years, after she was found guilty of adultery and fornication. This may have been one of the last lengthy sentences for these charges handed out in the U.S. justice system. A short account of the case appeared in a February issue of Jet magazine, which at the time reported regularly on adultery and fornication cases.

In many of the prosecuted cases, race appeared to play a notable role. The crime for which Weeks was tried, for instance, was having sex with four black men. (She was white.)

Sweeny says that race came up often in adultery cases of that era. “In some of these older cases, in the 1930s, ’40s, and ’50s, they mention specifically if the person is black and the other person is white,” she says. “You don’t need to mention that, and they do. You get the sense, not only for interracial stuff, there’s this social shaming: We don’t do that with those sort of people. It can also be class shaming. These prosecutions seem to be very much enforcing social codes, at different levels.”

In other words, adultery laws were used not just to protect individuals or the institution of marriage, but to police what kinds of people had sex with each other, at all. These days, society is, to some extent, less restrictive about those choices, and so adultery laws have lost their last shred of usefulness. Plus, if we really want to shame two people for their sexual behavior, we don’t need the law: we have the internet.