Adultery! Everyone knows what it means–and rarely do we think of adultery having to do much with law, except possibly in divorce actions. To some, it probably conjures up Nathaniel Hawthorne’s The Scarlet Letter, published in 1850, with its themes of sin, adultery, and Puritan law in 17th century Massachusetts. While in some countries in the world adultery is still punishable, even by death, in the Western world we tend to think of it as a private matter, not having much to do with law at all– particularly as no-fault divorces are now so common. But did you know that in the U.S. it can still be illegal?

Indeed, various states still have adultery on the books as a punishable offense. The penalties can differ widely: in Michigan it is punishable by up to life in prison (no, that’s not a typo!), while in Maryland it makes the offender subject to a $10 fine. But perhaps more surprising to many, even in that most-liberal-leaning state that I call home —  Massachusetts — adultery is still a crime. Rarely prosecuted, it is true, but a crime nonetheless. Mass General Laws chapter 272 section 14 (MGL c.272, s. 14) governs this act of passion, providing in one breathless (excuse the pun!?!) sentence that: “[a] married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” Perhaps the law, even today, still reflects our Puritan heritage?

While the law has been challenged on constitutional grounds related to privacy, the Supreme Judicial Court of Massachusetts has upheld the statute’s constitutionality in Commonwealth v. Stowell in 1983.  Is the statute enforced? Rarely. So rarely, in fact, that the Massachusetts Appeals Court had, two years earlier, mentioned that it had “fallen in a very comprehensive desuetude.” Desuetude is an interesting concept in itself; much more fundamental to civil law systems than to Anglo-American common law, it essentially holds that when a law is routinely flouted, unenforced, ignored or forgotten, it ceases to be a law. In the U.S., a law that has fallen into desuetude is generally no less a law for it– under the judicial concept that the legislative branch has the power to amend or repeal the law, if it so chooses, and that this does not properly fall under the judiciary’s purview.

So, in reality, while adultery is still a crime on the books in Massachusetts, it is most unlikely to be prosecuted, and if it were, arguably would not pass constitutional muster under the 2003 Supreme Court case of Lawrence v. Texas (which struck down anti-sodomy laws on the grounds of substantive due process enshrined in the 14th Amendment). But what of its role in divorce? Intuitively, we know that adultery is often a factor leading to divorces, and historically was one of the main legal grounds for such an action. In Massachusetts, like all other states, divorce can be granted on the basis of ‘no-fault’, meaning that the party filing for the divorce need not make a showing that the other’s actions precipitated the breakdown of the marriage. This, of course, was not always the case: divorce was traditionally adversarial, where the petitioning spouse had to allege malfeasance. Most commonly, this involved adultery, cruelty, abandonment, and the like. In the absence of such grounds, couples were forced to create “legal fictions” in order to petition for a divorce decree; these included such things as collusive adultery (in which the couple would arrange for one spouse, usually the wife, to return home at a pre-appointed time, to discover her husband in the arms of a mistress, conveniently obtained for the purpose). The use of legal fictions, it was claimed by reformers, was leading to the very real practice of perjury and was injurious to the administration of justice, resulting in growing movements in the 1930s onwards to adopt a no-fault rule.

In Massachusetts, divorces are governed by Chapter 208 of the General Laws, which enumerates eight grounds for divorce: adultery, impotency, “utter desertion” for one year, refusal of support, cruelty, drug or alcohol addiction, incarceration in a penal institution for five years or more, and the no-fault ground of irretrievable breakdown of the marriage.  Alleging these other seven at-fault grounds obviously make the proceedings adversarial — not necessary with a no-fault claim of irretrievable breakdown — and as such no-fault divorces tend to be much simpler, faster, less expensive, and more popular. Of the at-fault claims, allegations of abuse are the most common. With respect to adultery, a wronged spouse might wish to pursue this claim for other reasons, but pragmatically the main reason would be that a claim of adultery allows one to waive the one-year Massachusetts residency requirement before filing for divorce.