The original punishments – including standing on the gallows for an hour with a noose around the neck – have been softened to a $1,200 fine, yet some lawmakers think it's time for the 200-year-old crime of adultery to come off New Hampshire's books.
Seven months after the state approved gay marriage, lawmakers will consider easing government further from the bedroom with a bill to repeal the adultery law.
"We shouldn't be regulating people's sex lives and their love lives," state Rep. Timothy Horrigan said. "This is one area the state government should stay out of people's bedrooms."
Horrigan, D-Durham, and state Rep. Carol McGuire, R-Epsom, have teamed up on legislation to repeal the law.
Horrigan signed on because he believes it continues New Hampshire's efforts toward marriage equality. In June, lawmakers voted to legalize gay marriage – a law that takes effect Jan. 1.
"We shouldn't be in the business of regulating what consenting adults do with each other," Horrigan said.
Convicted adulterers years ago faced standing on the gallows, up to 39 lashes, a year in jail or a fine of 100 pounds. The punishment has been relaxed to a misdemeanor and a fine of up to $1,200 – with no jail time.
Law Professor Jeff Atkinson of DePaul University College of Law in Chicago says states rarely – if ever – enforce criminal adultery laws. Atkinson, author of the American Bar Association's Guide to Marriage, Divorce & Families, attributed that to a 2003 U.S. Supreme Court decision, Lawrence v. Texas. In its decision, the high court found that the state had no legitimate interest justifying its intrusion into the personal and private lives of two gay men arrested in their bedroom during a police investigation in a weapons case. The men had been charged with sodomy.
Atkinson said the case applies to adultery because both involve private sexual conduct.
Some recently questioned whether South Carolina Gov. Mark Sanford's admitted extramarital affair with a woman in Argentina made him subject to his state's 1880 criminal law against adultery. The penalty is a fine of up to $500 and a year in jail. The state said it couldn't waste limited money trying to prosecute Sanford on such a charge. The law's constitutionality also has been questioned.
The last attempts to repeal New Hampshire's law came after a Merrimack husband filed a complaint against his wife and her boss in 1987. When police refused to pursue adultery charges, Robert Stackelback brought the complaint himself against the pair. He later dropped the charges.
That prompted repeal efforts in 1987 and 1989. Both times the House voted for repeal, but the Senate did not. An attempt in 1992 to reduce the penalty to a violation also passed the House, but died in the Senate.
House Criminal Justice and Public Safety Chairman Stephen Shurtleff's committee will hear the latest bill, probably next month. Shurtleff, D-Concord, predicts – barring a compelling reason to keep the law – his committee will support repealing the law since it isn't being enforced.
In the past, conservatives argued decriminalizing adultery would weaken marriage.
Kevin Smith, executive director of the conservative Cornerstone Policy Research, opposes this repeal effort for the same reason.
"Even though this criminal law probably is not enforced right now and probably has not been enforced for some time, I think it's important to have a public policy statement that says generally or in all situations adultery is not a good thing. And I think, by repealing that statute, you're essentially diminishing the harmful effects of adultery," Smith said.
McGuire, the prime sponsor, believes the moral battle over adultery should be fought under the state's civil divorce laws. The bill would leave adultery as a cause in divorces not filed under the no-fault provision of the statute.
But Smith says leaving the criminal law on the books may give the harmed spouse more leverage in winning a settlement in divorce court.
Atkinson points out that New Hampshire's divorce law already allows judges to account for substantial harm done by an adulterer in determining a financial settlement and alimony.
Horrigan doesn't think a small fine will stop anyone from cheating on a spouse. He also wouldn't oppose taking adultery out of the civil divorce statute as a cause for the breakdown.
"Who we love and how we love is not something, an area the state has much business meddling in," he said.