Generally defined, adultery is voluntary sexual intercourse between a married person and someone else who is not their spouse. Some states have their own take on adultery; in North Carolina, adultery is when two people “lewdly and lasciviously associate, bed, and cohabit together.”

Is It a Crime to Commit Adultery?

As of the beginning of 2018, 19 states still have statutes that criminalize adultery. This is changing, however, as adultery laws are being increasingly viewed as archaic. For instance, adultery is illegal in Maryland and is punishable by a $10 fine with a misdemeanor tacked onto an individual’s record, yet it is very rarely prosecuted.

Maryland’s Office of the Public Defender handled five cases involving adultery over the past eight years—none of which listed the offense as the primary charge. A bill this session is seeking to repeal the Maryland law and take it off the books.

Are Adultery Statutes Constitutional?

Adultery statutes are constitutional, but they are not commonly prosecuted by states. Many laws are just a forgotten part of the states’ past, and are typically removed once a case comes up and the state’s government realizes that they need to remove the law.

The original logic of adultery laws were to encourage the idea that sex should only occur in a marriage, between a man and a woman who are committed only to each other. When adultery laws were created, many states believed it was the government’s duty to discourage/prevent intercourse outside of the marital bed.

Who May Initiate a Prosecution for Adultery?

Since adultery is a crime in certain states, it is customary for the state’s prosecutor to initiate prosecution. In some states, the spouse of the adulterer may be allowed to initiate the prosecution. In this situation, it is especially important to consult a family law lawyer before proceeding further.

Who Has the Burden of Proving Adultery?

As is true in all criminal trials, it is the state’s burden of proof to prove beyond a reasonable doubt that sexual intercourse took place. It is not enough to suspect or assume that an adulterous act occurred, which makes finding hard evidence difficult in situations where acts typically occur behind closed doors. Additionally, the state must prove that at least one of the adulterers is married.

What If You’re a Victim of Adultery?

If you are the victim of a cheating spouse, contact a family law lawyer as soon as possible. Not only can your attorney advise you of your best course of action in pursuing an adultery claim, but he or she will also be able to represent your best interests should you choose to move forward with a “fault divorce."