News

Adultery law repeal proposed

Thursday, January 21, 2010

By KEVIN LANDRIGAN

Staff Writer

CONCORD – It remains a crime in New Hampshire to commit adultery, but advocacy groups and legislators at both ends of the political spectrum called for its repeal last week.

They all noted that while it has remained on the books for more than two centuries, the law is unenforceable.

The last time someone asked for action on the law was more than 20 years ago.

In 1987, Robert Stacklebeck, of Merrimack, asked police to prosecute his then-estranged wife’s boyfriend for having an affair with her. Police declined to bring a case, so he filed a citizen’s complaint against them both.

It was the first time in 60 years that an adultery complaint was brought, but Stacklebeck later dropped the charges.

In colonial times, adultery charges could ultimately result in death as a punishment. The penalties in New Hampshire law from 1669-1973 were whipping and displaying the letters “AD” on the upper garments of the offender.

The laws were so unenforceable in modern times that they were never changed until legislators started rewriting archaic laws in the 1970s, when adultery was reduced to a misdemeanor punishable by up to one year in jail.

Since 1992, the crime in New Hampshire carries a fine of up to $1,200 and no jail time.

Rep. Sheila McGuire, R-Epsom, said she brought the bill (HB 1402) forward after a county prosecutor told her the office never even investigates adultery claims.

If this bill became law, adultery would remain a valid cause for seeking divorce under civil law.

“Adultery is a problem in the marriage. It ought to be solved in that context and not in a criminal court,” McGuire told the House Criminal Justice and Public Safety Committee.

The law defines adultery as sexual intercourse between a married person and someone who isn’t his or her spouse, or between a single person and a married person.

Rep. Timothy Horrigan, D-Durham, noted there are 2,000 divorce cases a year in New Hampshire in which adultery is alleged. Keeping it in criminal law only creates a more poisonous atmosphere during divorce cases.

“I don’t think that anything hurtful needs to be a crime,” Horrigan said.

Kevin Smith, with Cornerstone Action, a conservative citizen interest group, said the law needn’t be in place.

“Practically speaking, we don’t oppose the repeal of this legislation,” Smith said.

But Smith called for replacing it with a statement asserting a state interest in promoting healthy marriage relationships.

“The state should set a clear policy statement that adultery is egregious behavior,” Smith said.

The proposed amendment from Smith’s group says in part, “The repeal of the statute shall in no way be construed as the state’s endorsement or encouragement of adultery, nor shall it be construed as encouraging the repeal of the state’s civil laws governing adultery.”

There are about two dozen states with adultery laws, and some legal critics assert someone convicted could successfully challenge them as unconstitutional.

The state House of Representatives voted in 1987 and 1989 to repeal the adultery law, but both bills died in the state Senate.

Claire Ebel, executive director of the New Hampshire Civil Liberties Union, said while adultery remains private consensual behavior, even though it can be argued in divorce court, “It is none of the state’s business.”

Rep. David Welch, R-Kingston, playfully suggested the state adopt Abraham Lincoln’s approach to make adultery disappear from New Hampshire law.

“The best way to get rid of a bad law is to enforce it strictly,” Welch said, repeating Lincoln’s words with his tongue firmly planted in cheek.

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