New Hampshire Lawmakers Consider Decriminalizing Adultery

Concord, NH—State representatives are teaming up to pass legislation that will take off the books a 200-year-old law which makes it illegal to commit adulterous acts.

The push to repeal the outdated law comes in the wake of New Hampshire’s marriage equality initiative that legalized gay marriage. That law takes effect on January 1, 2010.

“We shouldn’t be regulating people’s sex lives and their love lives,” said state Representative Timothy Horrigan. “This is one area the state government should stay out of people’s bedrooms.” Horrigan, D-Durham, is working together with state Representative Carol McGuire, R-Epsom, in order to spearhead the legislation that would repeal the law.

It’s relatively rare for a state to enforce criminal adultery laws, mostly due to a precedent created by a 2003 United States Supreme Court decision. In Lawrence v. Texas, the court rules that the state did not have a legitimate interest justifying its intrusion into the private and personal lives of two gay men who were arrested in their bedroom during a police investigation into a weapons violation. The men were charged with sodomy, which is still illegal in many states.

That case has relevance in the New Hampshire debate over adultery because both involve acts of private sexual conduct.

In 1987, a Merrimack man filed a complaint against his wife and her boss, with whom she was having an affair. Police refused to file the adultery charges, so Robert Stackelback brought the charges himself, although he later dropped them. This case led to efforts to appeal the law in both 1987 and 1989. On each instances, the House voted in favor of the appeal, but the Senate nixed it. Another motion, to reduce the penalty to a violation, was brought in 1992 but also was voted down by the Senate after passing the House.

Some conservatives have claimed that the decriminalization of adultery would weaken marriage, but others say that the law is relatively useless because it’s not being enforced. Also at issue for some lawmakers and citizens is the idea that taking the law off the books would reduce the potential for settlements in divorce cases that are brought on grounds of adultery.

The bill will be heard by the House Criminal Justice and Public Safety Committee, which is chaired by Representative Stephen Shurtleff, D-Concord. Shurtleff has said that the committee will probably back the repeal.

Back in the day, convicted adulterers faced Scarlett Letter-like punishments, including 39 lashes or standing on the gallows with a noose around their neck for one hour. The current punishment is now a misdemeanor and a fine of up to $1,200.

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