Thursday, November 18, 2004

Adultery on Paper

Massachusetts is one of five states that -- at least on paper -- consider adultery a felony. The others are Idaho, Michigan, Oklahoma and Wisconsin. It is a misdemeanor in about half the country.

Here, the law is Chapter 272: Section 14, and reads:

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.

In practice though, it is hard to find any enforcement. Adultery as with marriage is a civil matter. However, in 1980, police discovered a couple obviously enjoying each others' company in public in a van. They admitted that they were married to other people. He paid a $50 fine, but she fought the charge. She claimed she had a right to privacy, citing abortion and contraception case law. The Supreme Judicial Court figuratively snorted and said those had nothing to do with each other. She lost and 272:14 remains the law of the commonwealth.
Commonwealth v. Stowell, 389 Mass. 171, 449 NE2d 357 (1983).

16 comments:

Anonymous said...

What would it take to convict someone on the felony of Adultery ?

Mass Marrier said...

Well, basically it takes prosecution. The law as above is pretty plain, although you should note that in Massachusetts oral sex of either standard variety does not qualify -- that falls under sodomy laws only.

I can't find a recent case that was prosecuted. Basically, the law is on the books to permit divorce. To prove adultery for that purpose, the details appear at: http://www.madivorceonline.com/mapages/Divorce/divorcerequirements.asp#10.

As nearly all divorces in the commonwealth are under the no-fault laws, no one bothers to prove adultery, much less prosecute it. Those are vindictive and take a long, long time to process.

Realistically though, one would have to have witnesses who could testify to actual genital penetration, not just making out. It would be tough, probably coming upon a couple in the act or having a private investigator provide the evidence. Afterwards, one would have to convince police and prosecutors to enforce the law.

It's no surprise that this is rare here.

Anonymous said...

i was seeing a guy that was married he is from massachusettes and Im from louisiana if he got caught what would happen to him

massmarrier said...

In Massachusetts, there'd almost certainly be no prosecution, even if the wife pushed for it. Even then, even if there was egregious display, any penalty would certainly be a tiny fine. If proven by witnesses or confession, adultery here could be the basis for a for-cause divorce. However, those take much longer and are much more expensive than no-fault ones.

In contrast, in Louisiana, where there is no criminal penalty, proven adultery shortens the normal six-month cycle to get a divorce. However, this requires witnesses or exacting proof, far beyond that a couple spent time in a closed room overnight.

Anonymous said...

-if adultery is a felony, why isn't it persecutable? If a person is being robbed, doesn't the law protect that person? Why not in this case??

massmarrier said...

DAs can, in fact, prosecute adultery under state law. It's not considered a felony, despite the seemingly harsh potential penalties. In reality, district attorneys and police officers tend not to charge anyone with a violation that would not likely result in a conviction.

For the past several sessions of our legislator, various lawmakers, often led by Rep. Byron Rushing, have introduced omnibus bills to remove such "archaic" as they call them laws. Other examples include a long series of laws designed to drive hobos (literally in the laws) out of towns. Some even suspend Fourth Amendment rights to do so.

For adultery to find active prosecution, it would likely have to be scandalous. One of the aggrieved spouses would surely have to insist on charges. That latter drive seemed to have disappeared with no-fault divorce. There was no longer any incentive to prove adultery, a process that would force the divorce to take years instead of months.

Charlotte Estep said...

In Oklahoma, when a recently divorced person circumvents the 6 month waiting period for marriage (to someone other than the divorced spouse) by marrying in Texas, it is a felony adultery if the newly weds plan to live in Okla.

Mayara said...

My mother left me and my father for another man..they are still married. Can my farther pursuit legal advice?

massmarrier said...

Attornrys are always eager to give advice — often an initial consultation free. They want new clients.

Laws vary state to state and action depends on the particulars.

Anonymous said...

If someone committed adultery does this help your case before a judge in a court? If you had their text records and could prove what happened would this lessen what you may or may not have to pay? Now after the other party is trying to make you pay out the ass and you didn't do anything wrong? Now that her sugar daddy didn't come through with his side of the promises?

Anonymous said...

what if u hav a picture of your husband them kissing and all lovey dovey and shes pregnant and shows it on pic is that enough to take to court or do u need more also he abandoned me wth debt he went to another state with her he never thought id find out but i do have pics with dates on a web site
is that good for a divorce hearing?
by the way if i can show was struggling like my job closed no job stuff like that wil judge consider that there are no kids in tis marriage

massmarrier said...

Lovey-dovey citing anon, as for causes, an initial, almost always free, conversation with a divorce attorney would be the best start to see how the situation aligns with the statutes and case law of your state. However, abandonment by itself tends to be solid grounds almost everywhere.

Anonymous said...

well i just found out my husband didnt only do adultery but he went to canada and remarried there while still married to me and i can prove it with marriage certificates mine and hers imjust wondering what could happen in a divorc court.im his legal wife . somebody said to me that i can win all he has with this woman in court is that true?

massmarrier said...

To the latest Anonymous, you likely know my drill. I not only am not a lawyer, but I don't know the particulars here. I'd advise immediately tracking down a divorce lawyer and asking for an initial free consultant (almost all will provide that at no charge).

Assuming your facts, yours has the complication of another country (who's living where and where would you file any action and what are the divorce laws there?). On the other hand, your suit would be first on bigamy - much easier to prove than adultery - and abandonment. From here, it looks like an easy case to win, but maybe harder to collect the settlement.

njjiana said...

Is text messages enough proof for adutery in Mass? Do the text need to say anything specific?

massmarrier said...

nijana, I'm sure that 1) depends on how clever and experienced your lawyer is and 2) people almost never bother. It's no-fault here, slow but easy to divorce. It's negotiate, negotiate, negotiate.

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