Written testimony in favor of HB1402: "AN ACT repealing the crime of adultery"

Rep. Timothy Horrigan (D-Durham NH)

additional commentary April 12, 2010

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My bill HB1402: "AN ACT repealing the crime of adultery" is scheduled to be heard by the Judiciary Committee of the New Hampshire House at 2:30 p.m., Wednesday April 13, 2010, State House Room 103. Here is my written testimony. My spoken testimony will be shorter and not verbatim from this text.

Written testimony in favor of HB1402

"AN ACT repealing the crime of adultery"

Rep. Timothy Horrigan; Strafford County #7; April 14, 2010

This bill was controversial outside the walls of the State House, although it passed the House by a voice vote.

It was even more controversial a few months ago thanks to a certain professional golfer named Tiger Woods. Happily, Woods finally returned to the PGA Tour. He played pretty well at the Masters, albeit not quite good enough to win. We can now start forgetting about his transgressions. He may have been stupid, but nothing he did was a crime aside from hitting a fire hydrant with his car. 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 don't condone casually cheating on your spouse, which is a hurtful and dangerous thing to do. But, not everything which might be hurtful or dangerous needs to be a crime.

I urge the Senate 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 and unnecessary 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 v. Blanchflower stated that heterosexual vaginal intercourse is the only extramarital sex act which can be adulterous. That was, needless to say, not a universally accepted definition. (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.

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 besides "straight" intercourse for human beings to be sexually unfaithful to their partners. 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.

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:

  1. Impotency of either party.

  2. Adultery of either party.

  3. Extreme cruelty of either party to the other.

  4. 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.

  5. When either party has so treated the other as seriously to injure health or endanger reason.

  6. When either party has been absent 2 years together, and has not been heard of.

  7. When either party is an habitual drunkard, and has been such for 2 years together.

  8. 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.

  9. 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 understood 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 majority "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."

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: RSA 645:3's rarely if ever used criminal sanctions are not needed.

Some will say that we need this law to send a message. I say that merely sending a message is not the purpose of criminal law. Some will say we need to keep the law on the books as a deterrent. A law which is never enforced is not much of a deterrent. And in the case of adultery, the people committing the offense are often in an excited frame of mind where the threat of criminal prosecution may seem unimportant. Adulterers are taking a huge risk anyway, and even the most law-abiding adulterers may find themselves in a state of mind where they are quite willing to risk prosecution. One of the reasons no one is ever prosecuted for adultery is because the authorities recognize that it is counterproductive to prosecute a basically harmless individual— no matter how willing that person may be to risk being prosecuted— merely for having a sexual relationship with a married person other than his or her own spouse.

Rep. Timothy Horrigan

(Strafford County #7)

7A Faculty Rd; Durham, NH 03824

ph: 603-868-3342

email: TimothyHorrigan@mac.com

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