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7 J.L. & Fam. Stud. 253 (2005)
A Breach of Vows but Not Criminal: Does Lawrence v. Texas Invalidate Utah's Statute Criminalizing Adultery

handle is hein.journals/jlfst7 and id is 261 raw text is: STATUTE NOTE:

A Breach of Vows But Not Criminal: Does
Lawrence v. Texas Invalidate Utah's
Statute Criminalizing Adultery?
Jennifer A. Herold*
I. INTRODUCTION
In 1643, a married woman and her lover were hanged in Massachusetts
for committing adultery.' Though the penalties are no longer as severe, adul-
tery remains a crime in Utah more than 350 years later. Not surprisingly, the
majority of Americans find adultery morally wrong.2 However, studies suggest
that nearly fifty percent of married men and women have engaged in adultery.3
In fact, at least 14 presidents of the United States have committed adultery
while in office.4 Most people would probably agree that criminal sanctions
should not be imposed on all who commit adultery. Nevertheless, Utah, and
twenty-two other states and the District of Columbia currently maintain crimi-
nal laws against adultery.5 The viability of those laws is called into question in
light of a recent Supreme Court decision.
* Junior Staff Member, Journal of Law and Family Studies.
Lorraine Ali and Lisa Miller, The Secret Lives of Wives: Why They Stray, NEWSWEEK,
available at http://www.msnbc.msn.com/id/5360419/site/newsweek?GTI=4244 (last accessed
Oct. 21,2004).
2 Bruce Handy, How We Really Feel About Fidelity, TIME, Aug. 31, 1998, available at
http:l www.cnn.com/ALLPOLITICS/1998/08/20/time/fidelity.poll.html (last accessed Sept. 6
2004) (finding that 86% of Americans find adultery morally wrong).
3 Jonathan Turley, Of Lust and the Law, WASHINGTON POST, Washingtonpost.com,
available at http://www.washingtonpost.com/wp-dyn/articles/A62581-2004Sep4.html (last ac-
cessed on Sept. 6, 2004) (A famous 1953 study by Alfred Kinsey found that fifty percent of
married men and twenty-six percent of married women had engaged in adultery by age forty. A
recent study by Ball State University reported that women under forty have caught up to men in
adulterous affairs.).
4 Roxanne Roberts, Adultery: Whose Business Is It? Sex May Sell, But Many People Be-
lieve The Issue of Infidelity Is Strictly Personal, WASH. POST, Feb. 20, 1998, at B I available at
http://www.wpni.cornwpsrv/politics/special/clinton/stories/adulteryO22098.htm (last accessed
Sept. 28, 2004).
5 See ALA. CODE § 13A-13-2 (2002); ARIZ. REV. STAT. ANN. § 13-1408 (2003); COLO.
REV. STAT. § 18-6-501 (2002); FLA. STAT. ANN. § 798.01 (West 2003); GA. CODE ANN. § 16-6-
19 (2003); IDAHO CODE § 18-6601 (Michie 2003); 720 ILL. COMP. STAT. ANN. 5/11-7 (West
2002); KAN. STAT. ANN. § 21-3507 (2001); MASS. ANN. LAWS ch. 272, § 14 (Law. Co-op. 2003);
MICH. COMP. LAWS ANN. § 750.30 (West 2003); MINN. STAT. ANN. § 609.36 (West 2003); MiSs.
CODE ANN. § 97-29-1 (2003); N.H. REV. STAT. ANN. § 645.3 (2003); N.Y. PENAL LAW § 255.17
(McKinney 2002); N.C. GEN. STAT. § 14-184 (2001); N.D. CENT. CODE § 12.1-20-09 (2003);
OKLA. STAT. ANN. tit. 21, § 872 (West 2002); R.I. GEN. LAWS § 11-6- 2 (2002); S.C. CODE ANN.
§ 16-15-60 (Law. Co-op. 2003); UTAH CODE ANN. § 76-7-103 (2003); VA. CODE ANN. § 18.2-

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