From the crazy doodles page, where AArdvark had done a drawing with the caption "Toaster arrested for public indecency", we have this later comment:
Actually that (for people) is still technically possible. Some states still have adultery on the books as a crime. However, in 2003 the US Supreme Court decided Lawrence v. Texas in which it changed its mind when it originally held that "sodomy" - which often includes oral sex as well as anal - could be made a crime, even when done by consenting adults in the privacy of their home, in the case of Bowers v. Hardwick.AArdvark wrote:Sorry, that toaster should have been charged with adultery.
The Lawrence court decided that non-commercial intimacy between consenting adults was one of the most important parts of what the right to privacy includes, overruled Bowers and found Texas' anti-sodomy law unconstitutional.
I think this also would hold if someone actually was charged with committing adultery in the few states it's still illegal, if it actually were to happen. Here's a close example to show why I think this is the case.
The Supreme Court of Virginia later decided the case of Martin v. Ziherl. Martin and Ziherl were girlfriend and boyfriend until Martin discovered Ziherl gave her herpes but had never warned her even though he knew he was infected. She sued him for the cost of medical treatment.
Ziherl's lawyer argued in the trial court that he wasn't liable for infecting her because under state law, having sex with someone you were not married to was the crime of "fornication" in Virginia, and based on the case of Zysk v. Zysk, "joint tortfeasors" (two people engaged in committing a crime) can't sue each other for injuries resulting during the commission of that crime.
Martin's lawyer responded that because the U.S. Supreme court had found anti-sodomy laws were unconstitutional because they violated the privacy rights of adults in the Lawrence case, the Virginia law that prohibited "ordinary" sex should clearly be unconstitutional as well, and thus she should be able to collect damages.
Ziherl's lawyer argued that Martin had no chance of being prosecuted for committing fornication as the Commonwealth hadn't prosecuted anyone under that law in over a century. Therefore she had no standing to challenge the constitutionality of the law.
The court agreed, also saying that the law was constitutional because of the state's interest in preventing disease and protecting marriage by prohibiting sex by unmarried couples, and dismissed the suit.
Martin appealed to the Virginia Supreme Court.
The court found that yes, Martin had no chance of being prosecuted under the anti-fornication law, she still had standing to challenge the law since it prevented her from suing her ex-boyfriend for damages since you can't sue someone for injuries if you get them because the two of you were committing a crime.
The court also agreed that the anti-fornication statute suffered from the same flaws as the anti-sodomy statute overturned in Lawrence. The privacy rights people have are not overcome by any supposed interest in the state in preventing non-marital sex or in the possible disease prevention.
The court struck down Virginia's anti-fornication law, and returned the case back to the trial court for an actual trial.
Based on these arguments and the ones in the original Lawrence case, I do not think an anti-adultery law would withstand a constitutionality challenge either.
Besides, the opposite conclusion would have been ridiculous. By the ruling of the U.S. Supreme Court, having anal sex with your girlfriend would be legal, but having vaginal intercourse could in theory still be prosecuted.