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For Better or for Worse: Adultery, Crime and the Constitution

NCJ Number
Journal of Family Law Volume: 30 Issue: 1 Dated: (1992) Pages: 45-96
M J Siegel
Date Published
52 pages
Adultery is discussed with respect to States' historic and current criminalization of it, its current incidence and attitudes, and constitutional issues related to the right to privacy.
Adultery is a crime in most of the United States and occurs in most American marriages. Nevertheless, the laws banning extramarital sex are not enforced, and we do not consider ourselves criminals for committing adultery. In fact, the United States Supreme Court has made privacy part of our criminal law, and acceptance of this right has become a virtual prerequisite for Senate confirmation to the Court. Adultery relates to the right to privacy in three ways: as a protected marital choice, as a relationship embraced by the freedom of association, and as an act protected by the individual's interest in sexual privacy. Nevertheless, States usually present three goals for their adultery laws: the prevention of disease and illegitimate children, the preservation of the institution of marriage, and the safeguarding of general community morals. However, the adultery laws do not appear to accomplish these goals; the judicial decisions reflect the view that individuals, and not the government, should make our most private, consensual choices. 275 footnotes


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