In 2014, N.H. lawmakers will debate whether adultery should remain a crime
Moses brought the commandment down from Mount Sinai: “Thou shalt not commit adultery.”
But state Rep. Tim O’Flaherty doesn’t think that particular rule belongs in New Hampshire’s criminal code.
“That statute is never used. . . . It seems like it’s not a matter for the state to be involved in,” said O’Flaherty, a Manchester Democrat who plans to file a bill next year to repeal the centuries-old adultery law.
New Hampshire isn’t the only state with a largely unenforced adultery ban on the books. As of 2011, 24 states counted adultery as a crime, according to the American Bar Association’s Family Advocate magazine.
Here, it’s a misdemeanor carrying a fine of up to $1,200 if a married person “engages in sexual intercourse with another not his spouse or, being unmarried, engages in sexual intercourse with another known by him to be married.”
That’s a slap on the wrist compared with the adultery law enacted by New Hampshire in 1791, which called for up to a year’s imprisonment, a fine of up to 100 pounds, a public whipping “not exceeding thirty nine stripes” and for the offender to “be set on the gallows for the space of one hour, with a rope about his or her neck.”
Times may have changed, but New Hampshire’s law has proven durable. In 2010, bipartisan legislation to repeal the law passed the House, but then was killed in the Senate.
“There was a surprising amount of opposition from people who thought that by decriminalizing it, we were saying we approved of it,” said Rep. Carol McGuire, an Epsom Republican who co-sponsored the 2010 legislation.
In 2012, another bill repealing the adultery law was killed by the House – though that bill also repealed New Hampshire’s ban on minors drinking alcohol as well as a law requiring a license from the selectmen for any “showman, tumbler, rope dancer, ventriloquist” or other entertainer to perform in a town.
Despite its longevity, O’Flaherty says the criminal ban on adultery is obsolete, and he’ll file a bill next year that would repeal it.
He also plans to file a second bill next year that would clarify the definition of “sexual intercourse” for the purposes of adultery in divorce cases. He said it’s “in response to a court case where the adulterer’s partner was found to not have committed adultery because they were having sexual relations with a homosexual partner.”
That would be a 2003 decision by the New Hampshire Supreme Court. By a 3-2 vote, the court ruled adultery requires sexual intercourse and sexual intercourse requires an act “which clearly can only take place between persons of the opposite gender.”
O’Flaherty said his second bill would bring some equality to the statute.
As for lifting the criminal ban on adultery, it seems likely that, as with the 2010 repeal attempt, O’Flaherty’s bill will run into resistance in the Legislature.
Patrick McGee, a spokesman for the Roman Catholic Diocese of Manchester, said church officials wouldn’t comment on the bill until they see the exact language.
But, he said, “I think the church teaching on adultery is clear, always has been, that it’s something we see as a moral wrong.”
(Ben Leubsdorf can be reached at 369-3307 or
firstname.lastname@example.org or on Twitter @BenLeubsdorf.)