Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws
University of Louisville Louis D. Brandeis School of Law
February 10, 2014
46 Loyola University Chicago Law Journal, 127 (2014)
University of Louisville School of Law Legal Studies Research Paper Series No. 2015-06
Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.
Number of Pages in PDF File: 48
Date posted: February 19, 2015 ; Last revised: March 3, 2015