Although Nathaniel Hawthorne has forever immortalized the crime of adultery as an icon of Massachusetts’ Puritan heritage, most are surprised to learn that adultery is still a crime in the Commonwealth—a felony, in fact, carrying a maximum sentence of three years in state prison. The most recent successful prosecution under this statute took place just over twenty years ago in Commonwealth v. Stowell. Despite admission by the Supreme Judicial Court that the crime had “fallen into a very comprehensive desuetude,” the court upheld the conviction, explaining that the statute remained a judicially enforceable expression of public policy.
Criminal statutes originally enacted in most states reflected the colonial understanding of adultery as primarily an offense against morality and, to a somewhat lesser extent, as an injury to the innocent spouse. Although many states have since repealed or modified these statutes, there are currently twenty-three states that continue to recognize adultery as a crime. Generally, modern adultery statutes prohibit sexual intercourse between a married person and an individual other than his or her spouse. These statutes, however, vary significantly by state as to elements of the offense, how and when the state may prosecute, and the punishment prescribed.
Criminal statutes prohibiting adultery have traditionally withstood constitutional challenge as a reasonable state regulation that does not infringe upon any liberty interest. Nevertheless, the United States Supreme Court’s 2003 decision in Lawrence v. Texas has recently reinvigorated debate over the viability of morality legislation and the extent to which the fundamental right to privacy will protect adult consensual sexual relationships. . . .