Thursday, November 15, 2012

Adultery in Massachusetts

The Boston Globe published an article today, Mass. Among 23 States Where Adultery is a Crime, But Rarely Prosecuted. We thought we'd provide a little substantive law as background. The adultery statute in Massachusetts is MGL c.272, s.14,  which 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 a 1983 case, Comm. v. Stowell, the Mass. Supreme Judicial Court held that the adultery law was constitutional, saying, in part:
"Whatever the precise definition of the right of privacy and the scope of its protection of private sexual conduct, there is no fundamental personal privacy right implicit in the concept of ordered liberty barring the prosecution of consenting adults committing adultery in private."
We are not unaware that the public policy against adultery is most often expressed in these divorce proceedings and that the crime of adultery is rarely made the subject of criminal prosecution...'To recognize that fact is not to say that [this statute has] become invalid or judicially unenforceable'....The statute remains as a permissible expression of public policy. If any lack of prosecution of the crime of adultery indicates a general public disfavor with the statute, appropriate means exist to address such disfavor to the Legislature, which has the power to change or repeal the statute.
Fordham Law Review has an interesting article on the issue nationwide: How the Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, 79 Fordham Law Reivew 605 (2010), which is available to our cardholders for download via HeinOnline.  More information on other Massachusetts laws about sexual conduct is available at our Mass. Law About Sex.