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Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws

48 Pages Posted: 19 Feb 2015 Last revised: 3 Mar 2015

JoAnne Sweeny

University of Louisville Louis D. Brandeis School of Law

Date Written: February 10, 2014

Abstract

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.

Suggested Citation

Sweeny, JoAnne, Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws (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. Available at SSRN: https://ssrn.com/abstract=2566980

JoAnne Sweeny (Contact Author)

University of Louisville Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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