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I found a public website regarding this law (New York Penal Law Sec. 255.17 Adultery), this one:

https://newyork.public.law/laws/n.y._penal_law_section_255.17

Let's say someone's wife cheats on her husband with my friend. My friend is not married, and does not have a spouse. If the husband files a police complaint in the state of New York regarding this adultery, can my friend be charged with the law? The law is worded to sound like only people with spouses can be charged. Thanks for any help.

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    The way I read that is that if either party has a living spouse, then either or both parties can be charged with adultery. Actually getting the police to accept the complaint would likely be an uphill battle though, never-mind the fact that the DA would almost certainly laugh at it and 'file' it in the trash even if it got that far. This is an example of one of those laws which has long outlasted its relevance to society. – brhans Jan 31 '19 at 17:54
  • The civil law of Alienation of affections has been abolished in 42 states, including New York. – Keith McClary Feb 1 '19 at 3:14
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The statute reads (emphasis mine):

A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.

Suppose Alvin has sex with Betty while Betty is married to Charlie. Does Alvin's conduct satisfy the elements of the crime?

  1. Alvin engaged in sexual intercourse with another person (namely Betty)

  2. at a time when the other person (Betty again)

  3. had a living spouse (namely Charlie).

So yes, Alvin has violated this law.

Betty has also violated the law (the first clause instead of the second).

  1. Betty engaged in sexual intercourse with another person (Alvin)

  2. at a time when he (Betty; the pronoun "he" is meant to be gender-neutral in the statute's style of writing)

  3. had a living spouse (Charlie).

However, this law is effectively unenforced in modern times. According to https://www.dbnylaw.com/adultery-is-still-a-crime-in-new-york-state/:

It is extremely rare for anyone to be arrested just for adultery. Indeed, since 1972, only 13 persons have been charged with adultery. Of those 13 persons, only five actually were convicted of the crime. In virtually every one of those cases, there was some other crime that was committed and the prosecuting attorney added adultery as just one of many crimes committed.

If Charlie files a complaint regarding the affair, it is almost certain that the police and prosecutors will ignore it, and that nobody will actually be charged with anything.

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    Is it even possible to convict someone of adultery in the post-Lawrence v. Texas era? It would seem that Lawrence's ruling would invalidate any law against adultery. – reirab Jan 31 '19 at 23:18
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    I didn't say "unenforceable" (though it might be, given reirab's note about Lawrence), but "unenforced". Police and prosecutors seem to have effectively decided, as a matter of policy and based on changing social mores, that it is not in the public interest to enforce this law, and not a good use of their time and resources. They have discretion to decide what crimes to pursue, and it seems clear that they don't want to pursue this one. That's a separate question from whether it would be legal to enforce the law, which I haven't addressed. – Nate Eldredge Feb 1 '19 at 1:10
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    "virtually every one of those" - wait, 13 cases .. virtually every one, so either all or almost all ... what did they do, check 12/13 and then said "oh thats enough, lets write virtually every one in case the other one doesn't check out"? What is it, "every one of those" or "all but one" or "like more than half or so", or "didn't check but I suppose"? I dispute the validity of this source if they can't even be bothered to count to 1 and have to resort to basically saying "like 1 or 2 or less" wasn't with other crimes. – DonQuiKong Feb 1 '19 at 12:31
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    Why not just use they as a gender neutral pronoun, lol? – Adonalsium Feb 1 '19 at 14:30
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    @Adonalsium That comes from the statute. He could have substituted the word "they" for the word actually used by the statute, but it is clearer to use the same word and explain why it actually applies. "at a time when he" is a direct quote. – Patrick Feb 4 '19 at 15:36
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Looking at the text of the statute, it is clear that in that case your friend has satisfied the elements put forth. However, there are further issues. One is that courts generally requires crimes to have an element of mens rea, and none is explicitly given in this statute. A court may then infer one, treating the statute as reading "A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or when they know, or reasonably should have known, that the other person has a living spouse." So if your friend was not aware that the woman was married, and was not negligent in not knowing that, then they have a colorable argument that they should not be found guilty.

Another issue is the constitutionality of criminalizing adultery. In the wake of Lawrence, courts have increasingly found sexual conduct to be constitutionally protected; see https://reason.com/volokh/2018/02/12/ninth-circuit-adultery-is-constitutional and https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4712&context=flr . So your friend would be unlikely to be charged, and would have a constitutional basis for challenging the prosecution if they were.

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    You are correct. Looking at the next statute: 255.20 Unlawfully procuring a marriage license, bigamy, adultery: defense. In any prosecution for unlawfully procuring a marriage license, bigamy, or adultery, it is an affirmative defense that the defendant acted under a reasonable belief that both he and the other person to the marriage or prospective marriage or to the sexual intercourse, as the case may be, were unmarried. – Ed Bayiates Feb 1 '19 at 16:48

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