Adultery Still a Crime in New York

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I saw a post on Boing Boing the other day about a list of "dumb laws," which the poster was not sure were real.  They weren't, or at least there were no citations, which always makes me skeptical – there are a lot of these lists in circulation, but most if not all of them appear to be bogus.  Maybe there is another source for this already, but I am going to start a couple of new categories to try to keep track of dumb and/or outdated laws that really exist.

I guess it is debatable whether New York's law against adultery is "dumb," but it does seem outdated.  It has been on the books since the early 1900s, but only 13 people have been charged with violating it in the last 40 years or so.

Number 13 got herself charged on June 4.

The law criminalizing adultery is in Article 255 of the state's Penal Code, an article titled "Offenses Against the Marital Relationship."  N.Y. Pen. Code § 255.17.  "A person is guilty of adultery," the law provides, "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 use of the term "living spouse" seems a bit odd, but I am guessing that under New York law, death does not automatically terminate a marriage, at least for some purposes like inheritance.  But far be it from me to try to figure out New York's domestic law, which is sufficiently antiquated that New York is the only state in the country that does not yet have no-fault divorce.  And that is all I know about domestic law in New York.

Unless criminal adultery counts, in which case I also know that it is a class B misdemeanor, the penalty for which is up to three months in jail and a $500 fine.  And I have further learned that you are significantly more likely to be charged with said crime if you commit it on a picnic table in a public park in the middle of the afternoon.

"It's not very often you have people engaging in sexual activity in a park in broad daylight," said Officer Eric Hill of the Batavia Police Department.  And when you do, presumably there is usually a bush or bushes or some other type of ground cover involved.  But the 29-year-old man and 41-year-old woman in this case chose a picnic table, upon which they could be seen by others who were enjoying the park in a more traditional way.  Families with children were visiting the park at the time, and one of them called police, although there is no indication that anybody checked to see if either of the picnickers had a living spouse.

It is also illegal to be "lewd" in public, of course, and they were charged with that, too, but according to Officer Hill this was a rare case where adultery charges were also justified.  "This particular circumstance met all the criteria for the charge," he said, although the statute doesn't say anything about picnic tables.  It also doesn't say that knowledge of the other person's marital status makes a difference (or that the statute has to be construed that way), which makes it a little strange that only the woman was charged with adultery.  Supposedly, the man did not know the woman was married, but according to the report, she had the bad luck to be arrested by an officer who did.

Of the 12 other adultery charges since 1972, seven were dropped but five resulted in convictions.  A reader suggested to the local paper that if the woman were found guilty, "then I suggest launching a full-fledged adultery investigation against all married members of the New York State government."  That seems about right.

Link: Democrat and Chronicle