Family Law

It's a crime to cheat on a spouse in NY. The law might soon change

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Cheating on one’s spouse may be a betrayal of the heart, but in New York State, it’s long been a criminal offense. (Stock photo)

Cheating on one’s spouse may be a betrayal of the heart, but in New York State, it’s long been a criminal offense.

But after nearly 120 years, a law against adultery—a misdemeanor in New York—could be scratched off the books. State lawmakers are advancing a bill this session to toss the rarely enforced section of the state penal code that since 1907 has defined adultery as a Class B misdemeanor punishable by up to 90 days in jail and a $500 fine.

Assemblyman Charles Lavine (D), who sponsored the bill, said the law is out of step with modern society. He noted earlier this month to Politico that since the crime is only a B misdemeanor, those charged with it don’t receive a jury trial, leaving it entirely up to a judge to determine their conviction and sentence.

“It doesn’t serve as a deterrent,” Lavine told Politico. “It’s a celebration of someone’s concept of their own morality.”

Laws criminalizing adultery are on the books in a handful of other states but are rarely enforced. In most cases, they were put on the books at a time when adultery was among the only ways to obtain a divorce, according to Carol Faulkner, a history professor at the University of Syracuse who studies 19th-century America, women and social movements and authored the 2019 book, “Unfaithful: Love, Adultery, and Marriage Reform in Nineteenth-Century America.”

After the American Revolution, New York State continued to be much more aligned with English laws, where it remained hard to get a divorce, Faulkner said. In the 19th century, only New York State and South Carolina had restrictions on divorce.

“In South Carolina, you couldn’t get a divorce at all,” Faulkner said. “In New York State, if couples wanted to divorce, they’d sometimes have to create an adultery claim.”

Faulkner said as divorce laws were liberalized across the country and included new grounds for a claim, like ill-temperament or “alienation of affection,” New York’s bar for was so high—adultery—that couples would sometime manufacture cheating claims to be able to divorce.

New York lawmakers first tried to strike the anti-adultery law 60 years ago when a legislative commission tried to cull archaic laws and modernize the state penal code. Lavine, who could not immediately be reached for comment Friday, is not aware of any opposition to his bill.

The law has been enforced roughly a dozen times since 1907, when it first ensnared a wealthy railroad contractor who was an investor in the Dreamland amusement park at Coney Island and his mistress, a shopgirl from Chicago, according to an archive of the story in the New York Times.

At the time, the scandalous Patrick H. Hirsch had left his wife, Elizabeth, to live with Ruby Yeargin; Hirsch moved the young woman and her mother from Chicago and began living with them in New York. Hirsch also moved his young son by Elizabeth to live with him and Yeargin, telling the boy she was his mother.

Elizabeth Hirsch put private detectives on the trail before bringing her claims to the police, who arrested her husband and Yeargin.

Faulkner said New York repealing its adultery law signals a changing view of marriage.

“When we had Obergefell v. Hodges, the U.S. Supreme Court decision, the slogan was ‘love is love,’” Faulkner said of the landmark case that legalized same-sex marriage. “Marriage should be about love, consenting adults and voluntary relationships. And if someone in a marriage decides they love someone else, in many ways we don’t condemn that.”

If there’s no longer love in a marriage, Faulkner said, it should be okay - and legal - to end it. To that end, the elder Yeargin may have been on to something back in 1907: she defended her daughter’s reputation, telling police, according to the Times, that Hirsch loved her daughter “better than he did his own wife.”

“People who love each other should be married,” Faulkner said, “and people who don’t love each other shouldn’t be.”

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