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Adultery lawsare the laws in various countries that deal withextramarital sex.Historically, many cultures consideredadulterya very seriouscrime,some subject to severe punishment, especially in the case of extramarital sex involving a married woman and a man other than her husband, with penalties includingcapital punishment,mutilation,ortorture.[1]Such punishments have gradually fallen into disfavor, especially inWestern countriesfrom the 19th century. In countries where adultery is still a criminal offense, punishments range fromfinestocaning[2]and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries repealing them.

Most countries that criminalize adultery are those where thedominant religion is Islam,and severalsub-Saharan AfricanChristian-majority countries,but there are some notable exceptions to this rule, namely thePhilippinesand 17U.S. states(as well as Puerto Rico).

However, even in jurisdictions that have decriminalised adultery, adultery may still have legal consequences, particularly in jurisdictions withfault-based divorcelaws, where adultery can constitute aground for divorceand may be a factor inproperty settlement,thecustody of children,the denial ofalimony,etc. Adultery is not a ground for divorce in jurisdictions which have adopted ano-fault divorcemodel, but may still be a factor in child custody and property disputes.

The criminal status of adultery has attracted criticism, especially where there are violent penalties. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact,Kamala Chandrakirana,has stated that: "Adultery must not be classified as a criminal offence at all".[3]A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offence violates women’s human rights".[4]

In Muslim countries that followSharia lawfor criminal justice, the punishment for adultery may bestoning.[5]There are fifteen[6]countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia.[7] Countries which follow very strict versions of Sharia law in their criminal systems include Saudi Arabia, Iran, Brunei, Afghanistan, Sudan, Pakistan, 12 of Nigeria's 36 states (in Northern Nigeria) and Qatar; although these laws are not necessarily enforced.[8]Al-Shabaab,a jihadist fundamentalist group based in East Africa (mainly Somalia) and Yemen also implements an extreme form of Sharia.[8]

Punishment[edit]

In jurisdictions where adultery is illegal, punishments vary from fines (for example in the US state ofRhode Island[9]) to caning in parts of Asia.[10][11]In fifteen countries[6]the punishment includesstoning,although in recent times it has been legally enforced only in Iran and Somalia.[7]Most stoning cases are the result ofmob violence,and while technically illegal, no action is usually taken against perpetrators. Sometimes such stonings are ordered by informal village leaders who havede factopower in the community.[12]Adultery may have consequences undercivil laweven in countries where it is not outlawed by thecriminal law.For instance it may constitutefaultin countries where thedivorce lawisfault basedor it may be a ground fortort.

In some jurisdictions, the "intruder" (the third party) is punished, rather than the adulterous spouse. For instance act 266 of the Penal Code of South Sudan reads: "Whoever, has consensual sexual intercourse with a man or woman who is and whom he or she has reason to believe to be the spouse of another person, commits the offence of adultery [...]".[13]Similarly, under theadultery law in India(Section 497 of the Indian Penal Code, until overturned by theSupreme Courtin 2018) it was a criminal offense for a man to have consensual sexual intercourse with a married woman, without the consent of her husband (no party was criminally punished in case of adultery between a married man and an unmarried woman).

Asia[edit]

Southwest Asia[edit]

In Southwest Asia, adultery has attracted severesanctions,including thedeath penalty.In some places, such asSaudi Arabia,the method of punishment for adultery isstoning to death.Proving adultery under Muslim law can be a very difficult task as it requires the accuser to produce four eyewitnesses to the act of sexual intercourse, each of whom should have a good reputation for truthfulness and honesty. The criminal standards do not apply in the application of social and family consequences of adultery, where the standards of proof are not as exacting.[14][15]Sandra Mackey,author ofThe Saudis: Inside the Desert Kingdom,stated in 1987 that in Saudi Arabia, "unlike the tribal rights of a father to put to death a daughter who has violated her chastity, death sentences under Koranic law [for adultery] are extremely rare."[16]

In regions of Iraq and Syria under ISIL, there have been reports of floggings as well as execution of people who engaged in adultery. The method of execution was typically bystoning.[17]ISIL would not merely oppose adultery but also oppose behavior that from their point of view could lead to adultery, such as women not being covered, people of the opposite sex socializing with one another, or even female mannequins in store windows.[18]

China[edit]

InChina,punishments for adultery were differentiated based on gender of the spouse until 1935.[19]Adultery is no longer a crime in thePeople's Republic of China,but is aground for divorce.[20]It is illegal to commit adultery with the spouse of a servicemember in thePeople's Liberation Army.[21][22]

Taiwan[edit]

InTaiwan,adultery was a criminal offense before 2020.[23][24]The law was challenged in 2002 when it was upheld by theConstitutional Court.[25]Arguments were heard again by the court in March 2020,[26][27]and the court ruled the law unconstitutional on 29 May 2020.[28]Twelve of fifteen justices issued a concurring opinion, two others concurred in part, and one dissented.[29][30]TheLegislative Yuanamended theCriminal Code[zh]on 31 May 2021, removing the article criminalizing adultery entirely.[31]

DuringQing rule in Taiwan(1683 to 1895), the husband or his relatives could bring charges. The standard sentence was ninety lashes for each of the accused. The woman could be sold or divorced. The matter could be settled out of court, with bodily harm to the accused or assorted punishments affecting his social standing. UnderJapanese rule,only the husband could bring charges. The accused could be sentenced to two years imprisonment.Wife sellingbecame illegal, although private settlements still occurred.[19]

India[edit]

On 27 September 2018, theSupreme Court of Indiaruled Section 497 of theIndian Penal Code,the law which criminalized adultery, as unconstitutional.[32][33][34]Before 2018, adultery was defined as sex between a man and a woman without the consent of the woman's husband.[35]The man was prosecutable and could be sentenced for up to five years (even if he himself was unmarried) whereas the married woman couldn't be jailed.[36]Men have called the lawgender discriminationin that women cannot be prosecuted for adultery[37]and the National Commission of Women has criticized the British era law of being anti-feminist as it treats women as the property of their husbands and has consequently recommended deletion of the law or reducing it to a civil offense.[38]Extramarital sex without the consent of one's partner can be a valid grounds for monetary penalty on government employees, as ruled by the Central Administrative Tribunal.[39]

Japan[edit]

Adultery was a crime inJapanuntil 1947.[40]

South Korea[edit]

In 2015,South Korea's Constitutional Courtoverturned the country's law against adultery.[41]Previously, adultery was criminalized in 1953, and violators were subject to two years in prison, with the aim of protecting women from divorce. The law was overturned because the court found that adultery is a private matter in which the state should not intervene.[42][43][44]

Pakistan[edit]

InPakistan,adultery is a crime under theHudood Ordinance,promulgated in 1979. The Ordinance sets a maximum penalty ofdeath.The Ordinance has been particularly controversial because it requires a woman making an accusation ofrapeto provide extremely strong evidence to avoid being charged with adultery herself. A conviction for rape is only possible with evidence from no fewer than four witnesses. In recent years high-profile rape cases in Pakistan have given the Ordinance more exposure than similar laws in other countries.[45]Similar laws exist in some other Muslim countries, such asSaudi ArabiaandBrunei.

Philippines[edit]

Adultery is a crime in thePhilippines.[46]In the Philippines, the law differentiates based on the gender of the spouse. A wife can be charged with adultery, while a husband can only be charged with the related crime of concubinage, which is more loosely defined (it requires either keeping the mistress in the family home, or cohabiting with her, or having sexual relations under scandalous circumstances).[47]There are currently proposals to decriminalize adultery in the Philippines.[48]

Europe[edit]

AdulterygraffitiinBristol,byBanksy

Adultery is no longer a crime in any European country.

Adultery in English lawwas not a criminal offence in secular law from the later twelfth century until the seventeenth century. It was punishable under ecclesiastical law from the twelfth century until jurisdiction over adultery by ecclesiastical courts in England and Wales was abolished in England and Wales (and some British territories of the British Empire) by theMatrimonial Causes Act 1857.However, in English and Welsh common law oftortit was possible from the early seventeenth century for a spouse to prosecute an adulterer for damages on the grounds ofloss of consortiumuntil theLaw Reform (Miscellaneous Provisions) Act 1970.Adultery was also illegal under secular statute law for the decade in which theCommonwealth (Adultery) Act (1650)was in force.[49][50]

Among the last European countries to decriminalise adultery wereItaly(1969),West Germany(1969),Malta(1973),Luxembourg(1974),France(1975),Spain(1978),Portugal(1982),Greece(1983),Belgium(1987),Switzerland(1989), andAustria(1997).[51][52][53][54][55][56][57][58]

InRomaniaadultery was a crime until 2006,[59]though the crime of adultery had a narrow definition, excluding situations where the other spouse encouraged the act or when the act happened at a time the couple was living separate and apart;[60]and in practice prosecutions were extremely rare.[61]

InTurkey,adultery laws were held to be invalid in 1996/1998 because the law was deemed discriminatory as it differentiated between women and men. In 2004, there were proposals to introduce a gender-neutral adultery law. The plans were dropped, and it has been suggested that the objections from the European Union played a role.[53][62][63]

Before the 20th century, adultery was often punished harshly. In Scandinavia, in the 17th century, adultery and bigamy were subject to thedeath penalty,although few people were actually executed.[64]Examples of women who have been executed for adultery in Medieval and Early Modern Europe includeMaria of Brabant, Duchess of Bavaria(in 1256),Agnese Visconti(in 1391),Beatrice Lascaris di Tenda(in 1418),Anne Boleyn(in 1536), andCatherine Howard(in 1542). The enforcement of adultery laws varied by jurisdiction. In England, the last execution for adultery is believed to have taken place in 1654, when a woman named Susan Bounty washanged.[65]

TheEuropean Court of Human Rights(ECHR) has had the opportunity to rule in recent years on several cases involving the legitimacy of firing a person from their job due to adultery. These cases dealt with people working for religious organizations and raised the question of the balancing of the right of a person to respect for their private life (recognized in the EU) and the right of religious communities to be protected against undue interference by the State (recognized also in the EU). These situations must be analyzed with regard to their specific circumstances, in each case. The ECtHR had ruled both in favor of the religious organization (in the case of Obst) and in favor of the fired person (in the case of Schüth).[66]

Latin America[edit]

Until the 1990s, most Latin American countries had laws against adultery. Adultery has been decriminalized in most of these countries, includingParaguay(1990),[67]Chile(1994),[68]Argentina(1995),[69]Nicaragua(1996),[70]Dominican Republic(1997),[71]Brazil(2005),[72]andHaiti(2005).[73]In some countries, adultery laws have been struck down by courts on the ground that they discriminated against women, such asGuatemala(1996), where the Guatemalan Constitutional Court struck down the adultery law based both on the Constitution'sgender equalityclause and on human rights treaties including CEDAW;[74]andVenezuelain 2016.[75]The adultery law of the Federal Criminal Code ofMexicowas repealed in 2011.[76][77]

Australia[edit]

Adultery is not a crime in Australia. Under federal law enacted in 1994, sexual conduct between consenting adults (18 years of age or older) is their private matter throughout Australia,[78]irrespective of marital status. Australian states and territories had previously repealed their respective adultery criminal laws. Australia changed tono-fault divorcein 1975, abolishing adultery as a ground for divorce.

Canada[edit]

Adultery is not a crime in Canada. It has never been defined as a criminal offence within theCriminal Code,which was enacted in 1892, nor is it considered an offence at common law.[79]

United States[edit]

Legality and decriminalization of adultery in the United States
Adultery is afelony
Adultery is amisdemeanor
Adultery decriminalized between 2010 and the present
Adultery decriminalized between 1990 and 2010
Adultery decriminalized before 1990
Adultery never criminalized, or unknown date of decriminalization

The United States is one of fewindustrialized countriesto have laws criminalizing adultery.[80]In the United States, laws vary from state to state. Until the mid-20th century, most U.S. states (especially Southern and Northeastern states) had laws againstfornication,adultery orcohabitation.These laws have gradually been abolished or struck down by courts as unconstitutional.[81][82][83]

State criminal laws against adultery are rarely enforced. Federal appeals courts have ruled inconsistently as to whether these laws are unconstitutional (especially after the 2003Supreme CourtdecisionLawrence v. Texas) and as of 2019 the Supreme Court has not ruled directly on the issue.[84][85]

As of 1 December 2023, adultery is a criminal offense (technically, not necessarily in practice) in 17 states and theCommonwealth of Puerto Ricobut prosecutions are rare.[86][87]Pennsylvaniaabolished its fornication and adultery laws in 1973.[88]States which have decriminalised adultery in recent years includeWest Virginia(2010),[89]Colorado(2013),[90]New Hampshire(2014),[86][91]Massachusetts(2018),[92]Utah(2019),[93]Idaho(2022),[94]andMinnesota(2023).[95]TheDistrict of Columbiarepealed its adultery law in 2003.[96][97]When passing theDistrict of Columbia Organic Act of 1801,the6th United States Congressextended all of the criminal laws ofMarylandandVirginiato the respective territory within the District that each state had ceded to the federal government underArticle I, Section VIII,[98]and adultery had been an indictable offense in Maryland since the passage of aprovincial lawin 1715.[99]

The last conviction for adultery in Massachusetts was in 1983 and held that the statute was constitutional and that "no fundamental personal privacy right implicit in the concept of ordered liberty guaranteed by the United States Constitution bars the criminal prosecution of such persons [adulterers]."[100]

Although adultery laws are mostly found in theconservativestates (especiallySouthern states), there are some notable exceptions such asNew York.

In general, 3 US states criminalize it as afelony(Oklahoma, Michigan, and Wisconsin) and 14 states along with Puerto Rico criminalize it as amisdemeanor.Punishments range from as little as a $10 fine in Maryland (despite being technically a criminal offense, not a civil one) to a fine of up to $10,000 and jail time of up to 3.5 years in Wisconsin and a fine of up to $5,000 and jail time of up to 5 years in Michigan.

Below is the list of the statutes:

2 of these statutes (of Mississippi and North Carolina) refer to fornication as well and thus also by definition ban any extramarital sex altogether.

1 of these statutes (of Michigan) considers cohabitation between ex-spouses after their divorce as falling under the crime of adultery.

Below is the list of the specific anti-fornication statutes (in states where there's an offense of fornication and where it's a separate offence):

  • Georgia (Official Code of Georgia Annotated, § 16–6–8)
  • Illinois (Illinois Compiled Statutes, § 720-5/11-40)
  • North Dakota (North Dakota Century Code, § 12.1-20-08) (note: even though the crime is called "fornication", it only refers to having sex with minors or having sex in public. It doesn't target private consensual sex between adults, so in practice this law is irrelevant; it's only listed here for the sake of completeness because the crime is called "fornication" under the North Dakotan law)

Below is the list of the specific anti-cohabitation statutes (in states where there's an offense of cohabitation and where it's a separate offence):

  • Massachusetts(Massachusetts General Laws,§ 208–40) (note: criminalizes cohabitation between 2 ex-spouses after divorce as adultery. But since the Massachusettsan criminal anti-adultery statute was repealed in 2018 and there's no punishment for it anymore, in practice this law is an irrelevant legislative remnant with no function)
  • Oklahoma (Oklahoma Statutes Annotated, § 43–123) (criminalizes cohabitation between 2 ex-spouses after divorce as adultery)
  • Mississippi (Unannotated Mississippi Code, § 93–5–29) (criminalizes cohabitation between 2 ex-spouses after divorce as adultery)

In theU.S. military,adultery is a potentialcourt-martialoffense, falling under theGeneral article(Art. 134).[101]TheManual for Courts-Martialdefines (para. 99) "Extramarital sexual conduct" as being: "Elements.(1) That the accused wrongfully engaged in extramarital conduct as described in subparagraph c.(2) with a certain person; (2) That, at the time, the accused knew that the accused or the other person was married to someone else; and (3) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces".[102]As such, extramarital sex is not automatically an offense, it must be conducted under such circumstances that it is prejudicial to the armed forces. The law on adultery was revised in 2019 in order to include same-sex encounters in the offense.[103]

The enforceability of adultery laws in the United States is unclear following Supreme Court decisions since 1965 relating to privacy and sexual intimacy of consenting adults.[104]However, occasional prosecutions do occur.[105]

Six U.S. states (Hawaii,North Carolina,Mississippi,New Mexico,South Dakota,and Utah) allow the possibility of thetortaction ofalienation of affections(brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage).[106][107]In a highly publicized case in 2010, a woman in North Carolina won a $9 million suit against her husband'smistress.[108][109]

Laws against adultery incolonial Americawere very harsh. Despite this, there is only one known execution for adultery in American history: it occurred in theColony of Massachusettsin 1643, when the married 18 year old Mary Latham[110]and her extramarital lover James Britton were executed.[111][112]

Criticism of adultery laws[edit]

Political arguments[edit]

Laws against adultery have been named as invasive and incompatible with principles oflimited government(see Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate) chapter 2). Much of the criticism comes fromlibertarianism,the consensus among whose adherents is that government must not intrude into daily personal lives and that such disputes are to be settled privately rather thanprosecutedandpenalizedbypublic entities.It is also argued that adultery laws are rooted in religious doctrines; which should not be the case for laws in asecular state.

Opponents of adultery laws regard them as painfully archaic, believing they represent sanctions reminiscent of nineteenth-century novels. They further object to the legislation of morality, especially a morality so steeped in religious doctrine. Support for the preservation of the adultery laws comes from religious groups and from political parties who feel quite independent of morality, that the government has reason to concern itself with the consensual sexual activity of its citizens… The crucial question is: when, if ever, is the government justified to interfere in consensual bedroom affairs?[113]

There is a history of adultery laws being abused. InSomerset,England, a somewhat common practice was for husbands to encourage their wives to seduce another man, who they would thensueorblackmail,under laws (for examples seeCriminal conversation) prohibiting men from having sex with women married to other men.[114]

Discrimination against women[edit]

Opponents of adultery laws argue that these laws maintain social norms which justify violence, discrimination and oppression of women; in the form of state sanctioned forms of violence such asstoning,floggingorhangingfor adultery; or in the form of individual acts of violence committed against women by husbands or relatives, such ashonor killings,crimes of passion,and beatings.[74][115]UN Womenhas called for the decriminalization of adultery.[115]A Joint Statement by the United Nations Working Group on discrimination against women in law and in practice in 2012, stated:[74]

The United Nations Working Group on discrimination against women in law and in practice is deeply concerned at the criminalization and penalization of adultery whose enforcement leads to discrimination andviolence against women.

Concerns exist that the existence of "adultery" as a criminal offense (and even in family law) can affect the criminal justice process in cases of domestic assaults and killings, in particular by mitigatingmurdertomanslaughter,[116]or otherwise proving for partial or complete defenses in case of violence. These concerns have been officially raised by the Council of Europe and the UN in recent years. TheCouncil of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violencestates that member states should: (...) "57. preclude adultery as an excuse for violence within the family".[117]UN Womenhas also stated in regard to the defense ofprovocationand other similar defenses that "laws should clearly state that these defenses do not include or apply to crimes of 'honour', adultery, or domestic assault or murder."[118]

Use of limited resources[edit]

An argument against the criminal status of adultery is that the resources of the law enforcement are limited, and that they should be used carefully; by investing them in the investigation and prosecution of adultery (which is very difficult) the curbing of serious violent crimes may suffer.[119]

Consent as the basis of sexual offenses legislation[edit]

Human rights organizations have stated that legislation on sexual crimes must be based onconsent,and must recognize consent as central, and not trivialize its importance; doing otherwise can lead to legal, social or ethical abuses. Amnesty International, when condemning stoning legislation that targets adultery, among other acts, has referred to "acts which should never be criminalized in the first place, including consensual sexual relations between adults".[120]Salil Shetty, Amnesty International's Secretary General, said: "It is unbelievable that in the twenty-first century some countries are condoningchild marriageandmarital rapewhile others are outlawing abortion, sex outside marriage and same-sex sexual activity – even punishable by death. "[121]TheMy Body My Rightscampaign has condemned state control over individual sexual and reproductive decisions; stating "All over the world, people are coerced, criminalized and discriminated against, simply for making choices about their bodies and their lives".[122]

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