Not everyone has a closed marriage. Some people have a relationship agreement that allows for certain activities outside of their primary relationship. This is a form of consensual nonmonogamy. Contrary to popular understanding, people in these relationships can still cheat. There are typically rules. For example, a rule might be that you never bring the other person to the home. Or that you always use condoms.
So, one question you might ask is…are these people committing a crime? Is adultery actually still illegal?
The answer, of course is, it depends.
Where is Adultery Still a Crime in the U.S.?
In 2022, adultery by some definition is still a crime in 16 states: Arizona, Florida, Kansas, Illinois, Massachusetts, Oklahoma, Idaho, Michigan, Wisconsin, Minnesota, Utah, New York, Mississippi, Georgia, South Carolina and North Carolina.
However, adultery is not always defined the same. For example, in North Carolina, the legal definition of adultery is to “lewdly and lasciviously associate, bed and cohabit together.” So, if you just pick somebody up at a bar, that’s not a crime. But if you have a secondary partner you spend weekends with…it’s a problem.
However, these laws are rarely enforced and particularly rarely since 2003. Lawrence v. Texas implied that these laws are, in fact, unconstitutional. Since then, many states have dropped adultery laws.
Is It Still Adultery If Your Spouse Knows?
Legally, it depends. In many cases yes, because the assumption is not necessarily that your spouse consents…or consents freely to the goings-on. (We all know people who go along with open relationships when they would rather not).
But there are nuances. For example, in Virginia, you can use adultery as grounds for divorce, which will typically get you a better response in divorce court. However, Virginia adultery laws allow for three defenses. The first is condonation, which means that if you discovery the adultery but take your spouse back, there has to be a new instance of adultery. The second is connivance/procurement, which is when you encourage them. If you go to a wife swapping party… And the third is recrimination, which means they did it too.
Are You Going to be Arrested For It?
Adultery may still be technically illegal, but these laws aren’t being enforced and are likely unconstitutional.
However, bear in mind that if a relationship goes bad, it could be used against you in divorce court.