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I found a public website regarding this law (New York Penal Law Sec. 255.17 Adultery), this one:

https://newyork.public.law/laws/n.y._penal_law_section_255.17

Let's say someone's wife cheats on her husband with my friend. My friend is not married, and does not have a spouse. If the husband files a police complaint in the state of New York regarding this adultery, can my friend be charged with the law? The law is worded to sound like only people with spouses can be charged. Thanks for any help.

darkhorse
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    The way I read that is that if either party has a living spouse, then either or both parties can be charged with adultery. Actually getting the police to accept the complaint would likely be an uphill battle though, never-mind the fact that the DA would almost certainly laugh at it and 'file' it in the trash even if it got that far. This is an example of one of those laws which has long outlasted its relevance to society. – brhans Jan 31 '19 at 17:54
  • The civil law of Alienation of affections has been abolished in 42 states, including New York. – Keith McClary Feb 01 '19 at 03:14

2 Answers2

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The statute reads (emphasis mine):

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.

Suppose Alvin has sex with Betty while Betty is married to Charlie. Does Alvin's conduct satisfy the elements of the crime?

  1. Alvin engaged in sexual intercourse with another person (namely Betty)

  2. at a time when the other person (Betty again)

  3. had a living spouse (namely Charlie).

So yes, Alvin has violated this law.

Betty has also violated the law (the first clause instead of the second).

  1. Betty engaged in sexual intercourse with another person (Alvin)

  2. at a time when he (Betty; the pronoun "he" is meant to be gender-neutral in the statute's style of writing)

  3. had a living spouse (Charlie).

However, this law is effectively unenforced in modern times. According to https://www.dbnylaw.com/adultery-is-still-a-crime-in-new-york-state/:

It is extremely rare for anyone to be arrested just for adultery. Indeed, since 1972, only 13 persons have been charged with adultery. Of those 13 persons, only five actually were convicted of the crime. In virtually every one of those cases, there was some other crime that was committed and the prosecuting attorney added adultery as just one of many crimes committed.

If Charlie files a complaint regarding the affair, it is almost certain that the police and prosecutors will ignore it, and that nobody will actually be charged with anything.

Nate Eldredge
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    Is it even possible to convict someone of adultery in the post-Lawrence v. Texas era? It would seem that Lawrence's ruling would invalidate any law against adultery. – reirab Jan 31 '19 at 23:18
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    Can you clarify what makes in unenforceable? That is why some other laws are enforceable and this one is not, what makes it different? – Andrew Savinykh Feb 01 '19 at 00:50
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    I didn't say "unenforceable" (though it might be, given reirab's note about Lawrence), but "unenforced". Police and prosecutors seem to have effectively decided, as a matter of policy and based on changing social mores, that it is not in the public interest to enforce this law, and not a good use of their time and resources. They have discretion to decide what crimes to pursue, and it seems clear that they don't want to pursue this one. That's a separate question from whether it would be legal to enforce the law, which I haven't addressed. – Nate Eldredge Feb 01 '19 at 01:10
  • I would guess "not enforced" would mean that they won't arrest you or fine you merely for committing adultery, but this doesn't mean it's irrelevant. I'm sure that if it comes to divorce, it will matter which one of the spouses was caught in adultery, when it comes to who will get custody of the children or how the material possessions will be split. – vsz Feb 01 '19 at 07:06
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    "virtually every one of those" - wait, 13 cases .. virtually every one, so either all or almost all ... what did they do, check 12/13 and then said "oh thats enough, lets write virtually every one in case the other one doesn't check out"? What is it, "every one of those" or "all but one" or "like more than half or so", or "didn't check but I suppose"? I dispute the validity of this source if they can't even be bothered to count to 1 and have to resort to basically saying "like 1 or 2 or less" wasn't with other crimes. – DonQuiKong Feb 01 '19 at 12:31
  • @DonQuiKong - You think the source can't be valid because their language isn't precise enough? – Obie 2.0 Feb 01 '19 at 13:22
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    @Obie2.0 no, I dispute it's validity, I'm not saying it can't be valid. I'm merely saying an imprecise source is more probable to be a bad source than a precise source. – DonQuiKong Feb 01 '19 at 13:54
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    @DonQuiKong Most likely a couple of the cases have some complications in them where the author doesn’t want to categorize them strictly because of technicalities but also doesn’t want to get into the individual cases. – KRyan Feb 01 '19 at 14:29
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    Why not just use they as a gender neutral pronoun, lol? – Monica Apologists Get Out Feb 01 '19 at 14:30
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    @KRyan the problem I have is that "virtually every" for me implies like 99% give or take - so even if we say 95% that's 12,35 cases. 12/13 is merely 92%. That't not "virtually every". My gut says they didn't thoroughly check the cases and tried hiding it behind a wording that's not clear. Which would make for a bad source. Might be true, might not be true, but still .. – DonQuiKong Feb 01 '19 at 14:34
  • This law is probably still on the books for its effect on divorce cases. – Joshua Feb 01 '19 at 16:41
  • @Adonalsium Because this is formal writing. In formal writing, "he" is gender neutral and "they" is only plural. Also, I'm assuming this law is pretty old, so "they" probably wasn't yet established even casually as a gender neutral pronoun. "He" is the correct word here, even if the English language is moving away from it over time. – Patrick Feb 04 '19 at 15:28
  • @Patrick This is a stack exchange answer and the author can write whatever they damn well please, so why not make it gender neutral? – Monica Apologists Get Out Feb 04 '19 at 15:30
  • @Adonalsium I thought you were referring to where he quoted the statute. Were you referring to something else? – Patrick Feb 04 '19 at 15:35
  • @Patrick 'at a time when he (Betty; the pronoun "he" is meant to be gender-neutral in this style of writing)' – Monica Apologists Get Out Feb 04 '19 at 15:35
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    @Adonalsium That comes from the statute. He could have substituted the word "they" for the word actually used by the statute, but it is clearer to use the same word and explain why it actually applies. "at a time when he" is a direct quote. – Patrick Feb 04 '19 at 15:36
  • @Adonalsium: Patrick is right. I edited the post to clarify that I am referring to the statute's writing style. – Nate Eldredge Feb 04 '19 at 15:46
  • @Adonalsium interestingly, the original 1909 version of the Penal Law (where this is sections 100 through 103) just used "person" and "who" as subjects. Finding out when the language was rewritten is beyond my capabilities at the moment. – phoog Feb 04 '19 at 17:10
  • That's a fair edit and these are fair points. – Monica Apologists Get Out Feb 04 '19 at 17:35
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Looking at the text of the statute, it is clear that in that case your friend has satisfied the elements put forth. However, there are further issues. One is that courts generally requires crimes to have an element of mens rea, and none is explicitly given in this statute. A court may then infer one, treating the statute as reading "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 when they know, or reasonably should have known, that the other person has a living spouse." So if your friend was not aware that the woman was married, and was not negligent in not knowing that, then they have a colorable argument that they should not be found guilty.

Another issue is the constitutionality of criminalizing adultery. In the wake of Lawrence, courts have increasingly found sexual conduct to be constitutionally protected; see https://reason.com/volokh/2018/02/12/ninth-circuit-adultery-is-constitutional and https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4712&context=flr . So your friend would be unlikely to be charged, and would have a constitutional basis for challenging the prosecution if they were.

Acccumulation
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    You are correct. Looking at the next statute: 255.20 Unlawfully procuring a marriage license, bigamy, adultery: defense. In any prosecution for unlawfully procuring a marriage license, bigamy, or adultery, it is an affirmative defense that the defendant acted under a reasonable belief that both he and the other person to the marriage or prospective marriage or to the sexual intercourse, as the case may be, were unmarried. – Ed Bayiates Feb 01 '19 at 16:48