Editorial: Repeal outdated state adultery law
Back in 1701, officials in colonial New Hampshire passed a law against adultery that left little doubt how seriously they took it. Adulterers would be forced to sit on a gallows with a noose around their neck. They’d be whipped and, in a scene straight out of The Scarlet Letter, offenders would “for ever after weare a Capitall Letter A of two inches long and proportionable in Bigness cut out in cloath of a contrary colour to their cloaths and sewed upon their Upper Garments, on the out side of their Arme or on their Back in open View.” (The message, notes historian Lawrence Friedman in Crime and Punishment in American History, was that disgrace should continue until death.)
By 1791, in what passed for more modern thinking, New Hampshire had ditched the giant “A” but nonetheless subjected adulterers to up to a year in prison, a fine of up to 100 pounds, a public whipping “not exceeding thirty nine stripes” and an hour on the gallows “with a rope about his or her neck.”
Ancient history, except that New Hampshire law continues to make adultery illegal, even here in the 21st century. It’s a strange remnant of a long-ago era and one that should be repealed. The New Hampshire House will have a chance to do just that tomorrow. And though similar efforts have, strangely, stalled in recent years, there is no good reason for keeping the antique statute on the book. In fact, there are compelling arguments to get rid of it once and for all.
Adultery is currently considered a Class B misdemeanor in New Hampshire. It comes with the threat of a fine of up to $1,200. (Curiously, it only applies if the cheater is engaged in heterosexual cheating; a state Supreme Court ruling in a 2003 divorce case concluded that a gay tryst didn’t count as adultery.)
Have you ever heard of someone in the post-Hester Prynne era being tried for adultery – here or anywhere else in the United States? It nearly never happens. And that’s the simplest argument for getting rid of the law. New Hampshire law enforcement officials are rightly uninterested in enforcing it. And keeping unenforced statutes on the books chips away at the seriousness of state law more broadly.
New Hampshire legislators have considered this matter several times in recent years. In 1987 legislators were inspired by the case of a Merrimack man who filed an complaint against his wife and her boss only to find that the police refused to pursue the case. That year and again in 1989, the repeal effort failed. In 1992, legislators considered and rejected a proposal to reduce adultery from a misdemeanor to a mere violation. Repeal efforts in 2010 and 2012 failed.
We can sympathize – a little – with lawmakers who don’t want to gain a reputation for encouraging marital infidelity. But here’s a better way to think about it: The New Hampshire Legislature has no business meddling in the marital or sexual affairs of consenting adults. In fact, the U.S. Supreme Court signaled as much when it ruled in 2003 that the state had no legitimate interest justifying its intrusion into the private lives of two gay men arrested in their bedroom and charged with sodomy.
Getting rid of this law is more in keeping with the state’s long libertarian tradition of keeping government out of our personal affairs – and with its modern embrace of same-sex marriage. The message legislators will send is this: In New Hampshire, by and large, people’s sex lives are their own business.