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Adultery is a class B misdemeanor in New York. Although the inclusion of adultery in New York’s criminal code is anachronistic, and it seems as though in these modern times adultery would be relevant only in matrimonial and family matters, adultery’s inclusion in New York’s Penal Law is something that all married persons should be aware of. Despite the rare use of this criminal charge, it may still be used, and still carries with it a class B misdemeanor penalty of up to three months imprisonment and a fine of up to $500.00. Our experienced New York Criminal Attorneys can help you with the criminal charge of adultery.

The Temporary Commission on Revision of the Penal Law and Criminal Code believed that adultery should not have been included in the penal code. A majority of the members of the commission believed that a law prohibiting adultery did nothing to protect the public, it only enforced morality in private relations, therefore criminalizing adultery would not stop people from committing the act. Other critics claimed that criminalizing adultery undermined the authority of law enforcement because nearly every police department universally overlooked adultery. Despite these criticisms, the state assembly and senate retained the crime of adultery in their revised penal code, where it still stands. Critics have tried to attack criminalizing adultery as punitive of human passion, and disproportionately harming women, yet, adultery is still a crime in New York.

The elements of the crime of adultery are 1) sexual intercourse with another person 2) when the other person has a living spouse. Sexual intercourse has a specific legal meaning, which at one time, was international news due to President Clinton’s own adulterous affair. Sexual intercourse is defined in New York as retaining its original meaning and it occurs on penetration, however slight. Other forms of sexual contact, like oral and anal sex as defined by New York law do not constitute sexual intercourse with reference to adultery. Improper relations and other forms of sexual touching also do not constitute sexual intercourse for purposes of adultery.

There are two affirmative defenses to the crime of adultery. First, lack of knowledge of the previous marriage or a reasonable belief that the person with whom the defendant carried on the sexual affair was unmarried are affirmative defenses to the crime of adultery. Second, one cannot be convicted of adultery based solely on the testimony of the other adulterous sexual partner, without more evidence which would tend to prove that the defendant attempted have sexual intercourse with the other adulterous sexual partner.

The crime of adultery can trace its roots to the ecclesiastical courts of England, and the time before our country was founded. Puritans who founded New England believed that adultery was a crime against chastity and morality. In fact, the Puritans believed that adultery with a married woman was such a severe crime that it merited capital punishment. After the establishment of the United States as a nation, the prosecution of adultery waned. As time went on, the discovery of an adulterous relationship was occasionally used as blackmail. This, combined with the rare use of that statutes criminalizing adultery, caused the prestigious American Law Institute to recommend that adultery be decriminalized in 1962. However, many states, including New York, still find adultery to be such a moral outrage that it remains criminalized.

Adultery remains a Class B Misdemeanor crime that carries with it the maximum penalty of up to three months imprisonment and a $500 fine. Prosecution for adultery could also attract unwanted attention from the media, due to the rarity of the use of the statute, to private marital and extra-marital relations. If you have been accused of adultery please call our New York Criminal Attorneys for a free consultation.

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