HB 1402: "AN ACT repealing the crime of adultery"

By Timothy Horrigan; December 13, 2009, revised January 11, 2010, April 12, 2010

  [April 27, 2010] The Senate Judiciary committee had an "executive session" on HB1402 on Wednesday afternoon, April 21. 2010. I was otherwise engaged, since the House was in session at the time. For whatever reason, the committee voted 5-0 to kill the bill. The Senate is unlikely to overturn the bill on April 28. Only one member of the public showed up: one of several "mad Dads" who frequently show up at hearings about anything related to family law issues. He basically was upset because the existing law failed to keep his now-ex-wife from having an affair. I did send an email to my friends in the Senate (and they are all my friends, even Jeb Bradley):

Dear Senators:

I am a cosponsor of HB 1402, a bill decriminalizing adultery. The Senate judiciary committee voted to ITL it, and I know that decision is likely to stand up when the other 19 Senators consider it tomorrow--- but understandably I think this is a good bill which should be passed as is or passed with amendment.

I know it may be hard to vote in favor of adultery, but this bill simply removes a criminal offense (in RSA 645:3) which is (for good reason) never prosecuted and which is also not very clearly defined, although the law is aimed at forbidding certain physical activities when one or both parties are married to someone else.  This bill gets rid of an unenforceable law which merely serves to complicate the civil proceedings in divorce cases.

I know there is some concern about fault divorce.  Adultery is a cause for fault divorce: but, the definition used in divorce law does not rely on the criminal statute.  In any case, fault divorce is rare: about 1% of all divorces in NH are fault divorces.  Half of those fault divorces are for causes other than adultery.  There are only about two dozen divorces per year for adultery.  Even if this bill actually did abolish adultery as a cause for divorce—which it does not— aggrieved spouses would still be able to file for a no-fault divorce or for a fault divorce on some other grounds.

I also know there are some people who think we should toughen the penalties and/or make the list of forbidden activities more specific.

One citizen did show up at the hearing.  His story was one I heard from several other people.  The pattern is: John Doe is a faultless spouse, but his spouse Mary Doe disobeys RSA 645:3 and has an affair with Richard Roe.  She then files for a no-fault divorce, even though John wants to stay in the marriage.  Under current law, Mary Doe would be guilty of a Class B misdemeanor--- but only if she committed the specific physical acts forbidden by the law.  It is possible, as we all know, to have a romantic affair without committing certain physical acts.  The only party who can file for a fault divorce is the one who didn't do anything wrong: i.e., John Doe.  Mary Doe can't file for a fault divorce because John was not at fault.  But both John and Mary can still file for a no-fault divorce, with or without RSA 645:3 on the books.

Rep. Timothy Horrigan

  [April 13, 2010] HB1402 will be heard by the NH Senate Judiciary Committee on Wednesday, April 14, 2010 at 2:30 p.m.. This is the afternoon after what should be a short morning session. The location will be the State House, Room 103 (unless an overflow crowd shows up, in which case a larger room might be found.) The public can— and probably will— speak at this hearing, even though the bill passed the House by a voice vote. Click below for:

  [January 11, 2010] HB1402's first hearing is before the NH House Criminal Justice Committee: it is scheduled for Tuesday, January 12, 2010 at 10:00 a.m., at the Legislative Office Building in downtown Concord. The public can— and probably will— speak at this hearing. Click below for:

I was elected to the New Hampshire House of Representatives in 2008. In my first session, 2009, I introduced just one bill, HB 105, "AN ACT relative to voting machines for the counting of ballots." It passed easily after being amended.

During the runup to 2010, I got more ambitious. One of the bills I sponsored was HB 1402: "AN ACT repealing the crime of adultery." Well, actually I cosponsored it: the prime sponsor was Rep. Carol McGuire from Epsom, who is a stalwart of the New Hampshire Liberty Alliance. The bill was motivated partially by a desire to get the government out of citizens' private lives, and also by the desire to get rid of archaic laws which are never enforced. Rep. McGuire thought up the bill long before Tiger Woods wrecked his car in the middle of the night. It was also before South Carolina Gov. Mark Sanford's wife filed for divorce, although he had already hiked down the Appalachian Trail (which runs across New Hampshire) to Argentina.

A local development which complicates this bill is the emergence of a right-wing antisex activist named Karen Testerman as the leading Republican gubernatorial candidate. She has stated in the past that gays and lesbians were equivalent to "shoplifters and drug addicts" and that young people shouldn't even hold hands. She famously said at a 2004 meeting, "Holding hands is the first step: you're not even supposed to do that if you can avoid it." Testerman is strongly "pro family" and is opposed to all forms of extramarital sex. (She has not yet paraded her own family before the cameras: however, she is known to have a male spouse and at least one adult child.)

Laws related to sexual relationships usually go to the Judiciary or Children & Family Law committees. This one is going to the Criminal Justice & Family Safety committee. This is probably going to speed up the bill's progress through the House: this is a conservative committee, but also a very businesslike one. The other two committees are much more drama-prone.

There has been some pushback against this bill, but (of course) I am confident it will pass. One complication is that no one is sure what actually constitutes adultery: a 2003 state Supreme Court decision claimed that only heterosexual coitus can be adultery, which is not a widely-held definition of adultery,

This bill is not my #1 legislative priority: my first order of business to make sure the marriage equality bills we passed in 2009 don't get overturned.

The bill is very short:






AN ACT repealing the crime of adultery.

SPONSORS: Rep. McGuire, Merr 8; Rep. Horrigan, Straf 7

COMMITTEE: Criminal Justice and Public Safety


This bill repeals the crime of adultery.

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.




In the Year of Our Lord Two Thousand Ten

AN ACT repealing the crime of adultery.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Repeal. RSA 645:3, relative to the crime of adultery, is repealed.

2 Effective Date. This act shall take effect January 1, 2011.

It repeals RSA 645:3, which is about 3 lines long One possible complication is that adultery turns up in several other statutes, e.g., the divorce laws.— and this bill removes the statute which officially defines "adultery." My position is that adultery is still adequately defined even if this bill passes unamended. The common definition of "adultery" is basically: it's adultery when a married person has consensual (and otherwise legal) sex with someone other than his or her spouse. If it is rape, sexual assault, public indecency, prostitution, human trafficking, etc., it's not adultery. This statute, however, gives a somewhat more inclusive definition.



Section 645:3

    645:3 Adultery. –

A person is guilty of a class B misdemeanor if, being a married person, he engages in sexual intercourse with another not his spouse or, being unmarried, engages in sexual intercourse with another known by him to be married.

Source. 1971, 518:1. 1992, 269:19, eff. July 1, 1992.

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