CONCORD, N.H. — New Hampshire is taking steps to repeal a centuries-old law that makes it a crime to commit adultery.
The Judicial Branch reports that the law hasn’t been enforced in more than a decade.
Rep. Tim O’Flaherty, a Manchester Democrat who sponsored a House bill repealing the statute, said he was motivated by a 2003 ruling by the New Hampshire Supreme Court that same-sex partners in an adulterous affair could not be charged with adultery because of long-standing case law defining adultery as between a man and woman.
Marc Hassan, spokesman for Gov. Maggie Hassan, said she will likely sign the repeal measure if it passes.
Adultery is a Class B misdemeanor punishable by a fine of up to $1,200.
O’Flaherty also objects to it on privacy grounds.
“I don’t think there’s any appetite in New Hampshire to use police powers to enforce a marriage,” O’Flaherty told members of the Senate Judiciary Committee during a public hearing March 25.
At the hearing, the only member of the public who spoke was a man distraught over his own divorce. He said when he tried to file a criminal adultery complaint against his former wife, the officer told him it was the first such complaint he’d taken in 20 years. The Associated Press is not naming the man because it could identify his ex-wife, who was not charged with a crime.
“If we retain adultery as a crime, we may deter an otherwise law-abiding citizen … from falling into the trap of that repugnant behavior,” he said. “It does provide some solace to victims of adultery, who can take comfort in that fact that what happened to them was so evil the state has decided to criminalize it. That is not trivial.”
The bill passed the House 268-29 and awaits a vote by the Senate on Thursday.
The New Hampshire Supreme Court in 2003 ruled in a split decision that adultery involving two people of the same sex could not be grounds for divorce because case law dating back to the early 1800s defines adultery as “intercourse from which spurious issue may arise” – meaning a child born of the illicit affair.
“As ‘spurious issue’ can only arise from intercourse between a man and woman, criminal adultery could only be committed with a person of the opposite sex,” the court ruled. “Persons of the same gender cannot, by definition, engage in the one act that constitutes adultery under the statute.”
New Hampshire is not the only state in New England where adultery remains a crime.
In Massachusetts, adultery is punishable by up to three years in prison. In Rhode Island, anyone engaged in an adulterous affair faces a fine of up to $500, according to data compiled by the National Conference of State Legislatures.
Of 21 states that consider adultery a crime, many contain language that is gender specific and excludes same-sex married couples. For example, Oklahoma law defines adultery as “sexual intercourse of a married person with one of the opposite sex.”
“It’s not any kind of deterrence,” O’Flaherty said of the law. “People are going to cheat on their spouses regardless of what the law is.”
Rep. Carol McGuire, an Epsom Republican, co-sponsored the current repeal measure and a similar bill in 2010. The bill passed the House but was killed in the Senate. McGuire said she believes opponents thought a vote for the bill was tantamount to endorsing adultery.
“I don’t want to live in a place where the police are responsible for investigating adultery,” McGuire said.
If passed and signed into law, the bill would take effect Jan. 1.