Rep. Timothy Horrigan (D-Durham NH)
additional commentary January 11, 2010
My bill HB1402: "AN ACT repealing the crime of adultery" is scheduled to be heard by the Criminal Justice Committee of the New Hampshire House at 10 a.m., Tuesday, January 12, 2010. Here is my written testimony. My spoken testimony will be shorter and not verbatim from this text.
I promised the committee in advance that my testimony would be brief, although it is turning out to be less brief than I originally hoped. I would like to begin by saying that I think marriage is a good thing. Love and sex are good things: dangerous, but also good. Divorce is something to be avoided, but a good divorce is better than a bad marriage. And finally, I think adultery should continue to be cause for divorce.
This bill would have been controversial anyway, but we can thank Tiger Woods for making it even more controversial. He was being very stupid, but nothing he did was a crime aside from driving over a fire hydrant. Stupidity is not a crime. And even though RSA 645:3 is still part of New Hampshire's Public Indecency law, adultery should not be a crime either.
I value marriage very highly: in fact I began the new year of 2010 at a marriage ceremony in front of the State House. I don't condone casually cheating on your spouse, which is in most cases a hurtful and dangerous thing to do. But, not everything which might be hurtful or dangerous needs to be a crime. RSA 645:3 is a bad law which does not need to be in the RSAs.
I urge the House Judiciary committee, and the entire General Court, to pass HB1402, an act repealing RSA 645:3, the law which makes adultery a class B misdemeanor. This is an archaic law which is rarely if ever enforced. That fact that RSA 645:3 is never enforced is reason enough to repeal it; but there are other reasons why it is bad law.
Firstly, it is very hard to prove that RSA 645:3 was violated. Unless there are eyewitnesses, or a video recording exists, there is no way to prove that a couple actually had sexual intercourse. There is also some confusion about what exactly is or is not sexual intercourse. A 2003 state Supreme Court ruling in the fault divorce case of Blanchflower vs. Blanchflower stated that extramarital sex acts can be adulterous only if (paraphrasing the opinion itself) one person inserts his penis into another person's vagina. (This ruling was made before same-sex marriage was made legal in New Hampshire.)
RSA 645:3 is one of those laws which punishes you because of who you are rather than because of what you do. Consensual sex between adults is not normally illegal (unless it is incest, public lewdness and/or prostitution.) I will repeat one of the cliches we hear a lot around the State House: this law turns law abiding citizens into criminals.
Class B misdemeanors have a relatively small penalty attached to them: according to RSA 651:2 the penalties can be "conditional or unconditional discharge, a fine, or other sanctions, which shall not include incarceration or probation but may include monitoring by the department of corrections if deemed necessary and appropriate." This seems minimal compared to the penalties for other classes of crime, but those are still significant penalties. Moreover, even a Class B misdemeanor is still a criminal conviction, which has many negative consequences beyond the sentence itself. Theoretically, an adulterer could even end up on the sex offenders' registry. RSA 645:3 is not specifically enumerated in the list of offenses in RSA 651B— but there is a catchall provision to the effect that an offender can be added if he or she "committed the offense as a result of sexual compulsion or for purposes of sexual gratification."
Finally, RSA 645:3 as written complicates divorce law. The threat of criminal prosecution can greatly complicate what are already very difficult negotiations, especially in the current climate where we have criminalized normal family problems. That threat also encourages estranged partners to lie to each other and even to perjure themselves in court. This criminal law gives estranged partners another tool they can use to intimidate each other. The committee, along with myself and Rep. McGuire, received an email from an opponent of this bill which ironically demonstrates why this bill is a good idea. The gentleman said, in the middle of an impassioned plea:
I did not want my divorce. I was powerless to stop it. My wife committed adultery, wanted to continue to be with the man she committed adultery with, and filed for divorce. On the advice of two lawyers I have not pursued criminal charges against either my wife or her lover. I was discouraged from doing so because it could have an adverse affect on the civil divorce proceedings as far as custody and/or property distribution is concerned. My lawyers were concerned pursuing criminal charges might paint me as some sort of extremist.
This is an example of a very common pattern in divorce proceedings, especially when child custody is involved.
Adultery is currently one of the grounds for a "fault" divorce. In my opinion, rightly so. The definition in Blanchflower v. Blanchflower seems much too limited: there are all sorts of ways human beings can be unfaithful to their partners without a penis being inserted into a vagina. The reason Blanchflower v. Blanchflower ended up in the Supreme Court was because Mrs. Blanchflower's lover was a woman who did not wish to be a party to the divorce case. (Mr. Blanchflower was the plaintiff, and he wanted his wife to be found at fault.)
Fault divorces are rare: roughly 98% of the divorces in New Hampshire are "no fault" divorces on the grounds of "irreconcilable differences." .Typically, there are about 5000 no-fault divorces and about 50 fault divorces per year, including roughly 25 divorces on the grounds of adultery. Even the fault divorces almost always end up being mediated, and it is virtually unheard of for a married person to be forced to continue being married against his or her will. It would be pointless to deny a fault divorce anyway: one or both parties could simply file for a no-fault divorce. (The Children & Family Law Committee is currently considering HB 1510, which would eliminate no-fault divorce for most couples, but that bill is currently just a bill— and it is unlikely to pass. Even if HB1510 becomes law, married people can circumvent the law by moving out of state and/or agreeing to let one spouse volunteer to be the defendant.)
With only one or two possible exceptions, the grounds for a fault divorce are not criminal offenses. The complete list from RSA 458:7 is:
Impotency of either party.
Adultery of either party.
Extreme cruelty of either party to the other.
Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction.
When either party has so treated the other as seriously to injure health or endanger reason.
When either party has been absent 2 years together, and has not been heard of.
When either party is an habitual drunkard, and has been such for 2 years together.
When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together.
When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other.
This bill would eliminate the only statute where adultery is specifically defined. However,the fault divorce laws stand on their own without RSA 645:3: "adultery" and "sexual intercourse" are terms which are defined in common law. The majority opinion in Blanchflower vs. Blanchflower actually manages to define adultery without using RSA 645:3, although the existence of this statute was mentioned. The definition established by the "Blanchflower opinion" may be questionable, but it is not unclear. The minority opinion defines adultery sensibly as: "a spouse's intimate extramarital activity with another." The General Court does of course have the option of using HB1402 as a vehicle to clarify the definition of "adultery" and/or "sexual intercourse" although I personally favor passing HB1402 as is.
I mentioned incest, public lewdness and prostitution as crimes which involve sex between consulting adults. Those sex acts clearly harm society as a whole. (However, the incest laws actually predate the discovery of recessive genes and apply even when there is no risk of pregnancy.) There are some who say adultery should be banned because it undermines marriage and leads to divorce. However, extramarital sex acts per se are not harmful to society as a whole: extramarital sexual conduct is merely a symptom of problems with a marital relationship which are beyond the scope of this law. There even are a few situations (for example, when partners begin dating other people before a divorce is finalized) where extramarital sex does not undermine the marriage at all. In any case, not all divorces are bad: a good divorce is better than a bad marriage.
I have been serving on an ad-hoc caucus which has been investigating the family law system. We have heard some horrifying stories of divorce proceedings and other family court cases gone bad— very bad. The common thread in these stories was that the system tried to turn family issues into criminal cases. The current adultery law, even though it is never enforced, contributes to the poisonous atmosphere which exists in our current family law system. Even if the adultery law is repealed, adulterers will still be subject to severe social and economic sanctions. I think those sanctions are sufficient.
Rep. Timothy Horrigan
(Strafford County #7)
7A Faculty Rd; Durham, NH 03824
Blanchflower v. Blanchflower (a 2003 New Hampshire Supreme Court decision about a "fault" divorce case & adultery.)