new-york-state new-york-city
Does the adultery law in New York affect the person being used to cheat with?
<p>I found a public website regarding this law (New York Penal Law Sec. 255.17 Adultery), this one:</p>

<p><a href="https://newyork.public.law/laws/n.y._penal_law_section_255.17" rel="noreferrer">https://newyork.public.law/laws/n.y._penal_law_section_255.17</a></p>

<p>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.</p>

<p>The statute reads (emphasis mine):</p>

<blockquote>
  <p>A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, <strong>or the other person has a living spouse</strong>.</p>
</blockquote>

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

<ol>
<li><p>Alvin engaged in sexual intercourse with another person (namely Betty)</p></li>
<li><p>at a time when the other person (Betty again) </p></li>
<li><p>had a living spouse (namely Charlie). </p></li>
</ol>

<p>So yes, Alvin has violated this law.</p>

<p>Betty has <em>also</em> violated the law (the first clause instead of the second).</p>

<ol>
<li><p>Betty engaged in sexual intercourse with another person (Alvin)</p></li>
<li><p>at a time when he (Betty; the pronoun "he" is meant to be gender-neutral in the statute's style of writing)</p></li>
<li><p>had a living spouse (Charlie).</p></li>
</ol>

<p>However, this law is effectively unenforced in modern times.  According to <a href="https://www.dbnylaw.com/adultery-is-still-a-crime-in-new-york-state/" rel="nofollow noreferrer">https://www.dbnylaw.com/adultery-is-still-a-crime-in-new-york-state/</a>:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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. </p>

<p>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 <em>mens rea</em>, 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 <em>when they know, or reasonably should have known, that</em> 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.</p>

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