By Scott Forsyth
The Daily Record Newswire
“Thou shall not commit adultery,” an old moral command that 20 to 25 percent of married Americans — maybe more — disobey sometime during their lifetime.
In New York, to disobey the command is criminal. Penal Law §255.17 declares a person is guilty of adultery if he or she “engages in sexual intercourse with another person at a time when he has a living spouse.”
The other person is equally guilty of adultery — a misdemeanor punishable by up to three months in jail.
All of this would be legal trivia but for Suzanne Corona of Batavia, who burst onto the national scene in early June when police arrested her for having sex on a picnic table in a park. She and her partner were charged with public lewdness, a crime that fits the facts.
The buzz arose because Suzanne is married, and police decided to charge her with adultery. Hers is only the thirteenth arrest for adultery in New York since 1970.
The Genesee County District Attorney claimed it was not his job, or the job of the police, to decide whether adultery was a crime. If it is on the books, they will enforce it. The New York Legislature will have to make a contrary decision.
The district attorney is correct about legislatures needing to enact laws decriminalizing adultery. Half of the states have chosen to do so. What the district attorney fails to mention is the role of the Constitution and the “right to privacy” contained within it, which may curtail the enforcement of all adultery laws.
Justice Brandeis was the first to define the right, in eloquent terms: “The makers of our Constitution ... conferred as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. U.S., 277 U.S. 438, 478 (1928).
Subsequent Supreme Court decisions placed within the rubric of this fundamental right decisions relating to marriage, procreation, contraception, abortion, family relationships and child rearing and education. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (voiding statute criminalizing the use of contraceptives by married couples) and Loving v. Virginia, 388 U.S. 1 (1967) (voiding statute banning interracial marriages).
In 2003, the Supreme Court expanded the scope of the right of privacy to consensual sexual conduct between single persons. It struck down a Texas law that criminalized anal and oral sex between members of the same sex. Lawrence v. Texas, 539 U.S. 558 (2003)
Texas tried to justify the law on the basis of morality, that the legislators merely were carrying out the wishes of the majority of voters on the subject. The Court explicitly rejected the justification. Instead, Texas had to show a compelling interest in regulating sodomy, and that the means chosen — an outright ban — was narrowly tailored to achieve that interest. Texas failed this strict scrutiny test.
Justice Scalia, as his want, issued a scathing dissent, writing that the majority’s logic called into question “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”
Since Justice Scalia mentioned laws forbidding adultery as suspect now, is he correct? If, after Lawrence, a single adult person has a constitutional right to have intimate contact with another consenting adult, regardless of the form of the contact, does a married adult person have the same right? Most married persons would choose to be monogamous but if some do not, where is the harm requiring government intervention? That the majority may want government to get involved is not an answer.
Some persons may argue that the harm is to the spouse who did not commit adultery. These defenders of adultery laws assume that all such spouses are harmed and all seek vindication through a criminal proceeding.
The defenders reduce to a caricature what can be a complex relationship. For example, Suzanne’s husband has forgiven her and is supporting her publicly. Also, if there is harm, why cannot the particular harm to the relationship be addressed adequately through counseling or divorce, less drastic alternatives than a ban on adultery?
Other defenders may argue that a married person does not have the same right to intimate conduct as a single person because she entered into a marriage contract. The state defines the terms of the contract and one of those terms is the command not to commit adultery. In return, the state confers upon the parties to a marriage contract all sorts of rights and responsibilities not otherwise available to single persons. If a person does not like the terms of the contract, he or she should stay single.
The problem with the contract analysis is that the Constitution sets parameters on state action, including on what states may require of married couples. If it did not, then Connecticut would be able to forbid couples from using contraceptives and Virginia would be able to forbid interracial marriages.
Back to the Genesee County District Attorney: What is the People’s interest in prosecuting Suzanne for her choice of sexual conduct, given her constitutionally protected right to privacy? The place of the conduct, in a park and not to be condoned, is addressed by the public lewdness charge.
Suzanne returns to court Aug. 18. We may have some answers from the DA and Suzanne then.
Scott Forsyth is a partner in Forsyth & Forsyth and counsel to the local chapter of the ACLU. He may be reached at (585) 262-3400 or scott@forsythlawfirm.com.
