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In New York, infidelity within marriage has long been deemed a criminal offense. However, the law dating back to 1907 that penalizes adultery might soon see its end through repeal

For over a century, committing adultery has been considered a criminal offense in New York. However, there’s a possibility that adultery might soon be legalized in the Empire State, thanks to a bill currently progressing through the New York Legislature. This bill aims to repeal the seldom-enforced law, which carries a maximum penalty of three months’ imprisonment.

Although adultery bans still exist in several U.S. states, instances of charges and convictions are exceedingly rare. Historically, these laws were enacted to deter extramarital affairs, often viewed as the primary cause of divorces when divorce laws were stringent.

In New York, adultery has been classified as a misdemeanor since 1907, defined as engaging in sexual intercourse with someone other than one’s spouse while either party is married. Notably, only a handful of individuals have faced charges under this law since 1972, with minimal convictions. Assemblyman Charles Lavine, sponsor of the bill to repeal the ban, argues that it’s time to discard a law that is virtually never enforced and infringes upon the privacy of consenting adults.

Katharine B. Silbaugh, a law professor at Boston University, suggests that adultery bans historically served as punitive measures disproportionately affecting women, aimed at dissuading extramarital affairs that could cast doubt on a child’s parentage.

The bill to repeal New York’s adultery ban has cleared the Assembly and is expected to pass the Senate soon before reaching the governor’s desk for approval. Interestingly, there was a previous attempt to remove the law in the 1960s, but it was ultimately retained due to concerns about condoning infidelity and opposition from certain religious groups.

Although most states with adultery laws classify them as misdemeanors, some, like Oklahoma, Wisconsin, and Michigan, consider adultery a felony. However, similar to New York, several states have moved to repeal their adultery laws, citing similar arguments.

Furthermore, there are constitutional questions surrounding the legality of adultery bans. While a 2003 Supreme Court decision invalidated sodomy laws, casting doubt on the validity of adultery laws, Justice Clarence Thomas’s 2022 opinion suggested a reevaluation of the court’s stance on certain privacy-related issues, including adultery laws.

Ultimately, the hypothetical consideration of adultery laws by the Supreme Court may be more theoretical than practical, given the rarity of such charges being filed.

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