Saturday, December 28, 2013

How Adultery Is To Be Punished

From the Connecticut statutes of 1786, p. 8:


Never kid yourself that the Revolutionary forefathers were laissez-faire.  In addition to stuff like this, I am finding laws that require all bricks to be certain dimensions, laws providing that anyone may enter in private lands to destroy barberry-bushes (what those are) with being subject to lawsuit.

Armed robbery or armed burglary is a capital offense.  Second offense, even unarmed, is capital.

UPDATE: Interestingly enough, Connecticut police were arresting people for adultery as late as 1990:
HARTFORD, Conn. - Connecticut has rediscovered a relic from its Puritan past: Police this summer have charged four people with adultery.

In a state known for progressive laws on abortion rights, education and the environment, use of the rarely enforced state adultery law is raising eyebrows.

Under the law, a married person commits adultery by having sexual intercourse with someone other than his or her spouse. Single people cannot be charged. Conviction on the misdemeanor charge can result in up to a year in prison and a $1,000 fine....

Twenty-seven states still have adultery laws on the books, a survey by the Harvard Law Review found, but legal scholars say few states make much effort to enforce them. For example, in New York, where adultery is a misdemeanor, the last recorded prosecution was in 1944.

8 comments:

Anonymous said...

Apparently, barberry carries wheat rust and could infect crops.

http://en.wikipedia.org/wiki/Puccinia_graminis#History_of_stem_rust

Rob K said...

Vicious, but it doesn't follow God's law (Leviticus 20:10) which is more merciful, at least to the wronged party.

Clayton said...

Connecticut's Code of 1650, if I recall correctly, follows Leviticus, and prescribes death for both parties. I think that they were trying to get more liberal on this.

Of course, adultery is the only biblical grounds for divorce in traditional English law.

Tom West said...

Clayton: Yes, CT and other states had remarkably harsh laws on adultery. But I have never found any evidence that they were enforced. Have you?

Vermont's adultery law, 1779, is like CT's. It reads: "whosoever shall commit adultery with a married woman, or one betrothed to another man, both of them shall be severely punished by whipping on the naked body not exceeding thirty-nine stripes, and stigmatized, or burnt on the forehead with the letter A, on a hot iron; and each of them shall wear shall wear the capital letter A, on the back of their outside garment, of a different colour, in fair view, during their abode in this state. And as often as such convicted person shall be seen without such letter, and be thereof convicted before an assistant or justice of the peace in this state, shall be whipped on the naked body, not exceeding ten stripes." Laws of Vermont, 1777-1780, ed. Allen Soule, vol. 12 of State Papers of Vermont (Montpelier: Secretary of State, 1964), 38.

Re NH, Karen Weyler writes, "Until 1973, the statutory punishment for adultery in New Hampshire was whipping and the wearing of the letters ‘AD' on one's clothing. . . . Needless to say, this punishment had not been enforced for several centuries, but the fact that it remained on the statute books is an indication of how states began deliberately turning a blind eye toward so-called ‘domestic' crimes during the late eighteenth century." Weyler, "Fruit of Unlawful Embraces," Sex and Sexuality in Early America, ed. Merril D. Smith (New York: New York University Press, 1998), 310n33.

Prof. Tom West
Hillsdale College

Clayton said...

No question that there were often severe penalties written in law, but either never enforced (such as New England laws that made a child striking a parent capital) or enforced infrequently. I do know that Pennsylvania was still occasionally executing people for buggery (which included not only oral and anal intercourse, but bestiality) into the 1780s.

One difficulty in figuring out what crimes were punished in particular ways is how many of the newspaper accounts abbreviate some of these crimes to simply "felony."

Idaho was still enforcing its misdemeanor fornication statute as late as the 1970s. Laws against adultery in California were apparently still enough enforced into the 1930s for Steinbeck's Of Mice and Men to refer to a married woman who was encouraging sexual advances as "jailbait."

Tom West said...

Clayton: You mention anti-sodomy laws. It appears that early enforcement of those laws was lax. In the only reported case during the founding era, the perpetrator was found guilty of assault with an intent to commit sodomy on a 19-year-old boy (Davis v. The State, Court of Appeals of Maryland, 3 H. & J. 154 (1810), LexisNexis). In other words, the prosecution was for attempted homosexual rape of a minor.

You bring up the Pennsylvania example, which is the only other one I could find. In 1786, a man was executed in Pennsylvania for "buggery." But the records do not indicate whether the "buggery" was with another man or with an animal, or whether force or a threat of force was involved, as it was in the Maryland case. (According to Jefferson's comments on Virginia's proposed law on punishments, "Buggery is twofold. 1. with mankind, 2. with beasts.") (Jefferson, Papers, ed. Boyd, 2:497).

My information on the PA case is from Jack D. Marietta and Gail Stuart Rowe, Troubled Experiment: Crime and Justice in Pennsylvania, 1682-1800 (Philadelphia: University of Pennsylvania Press, 2006), 89.

I agree with you that Americans of the founding generation, and for the next century, were firm in their public opposition to adultery and other kinds of sex outside of marriage. But in practice, in spite of the harshness of these laws, these earlier Americans discouraged such behavior mainly by means of shame and dishonor, not by judicial punishments. Misbehavior of this sort was tolerated if it was discreet. (Friedman, Crime and Punishment, 130, quotes an 1846 Michigan law that forbid "open and gross lewdness and lascivious behavior" but did not punish extramarital or adulterous sex if it was out of the public eye.) As far as I can tell, for the most part, the de facto policy on sexual misconduct from the founding to the Progressive Era (when enforcement of sexual immorality laws became much more intrusive) was "don't ask, don't tell." Above all, keep it away from public notice.

Clayton said...

Maryland also has a Colonial era execution for buggery, and again, we don't know if that was for bestiality or non-vaginal intercourse. My guess is that if we have two cases we can document, there are probably more cases whose records have been lost.

I have since updated the posting to point out that Connecticut was still prosecuting for adultery as late as 1990, and New York State's last adultery prosecution was 1944. Rare, but not unknown.

This site http://deathpenalty.procon.org/view.resource.php?resourceID=004087 lists 15 executions in the period 1608-2002 for "Sodomy/Buggery/Bestiality" and two for adultery. Obviously, many crimes that could have been capital were not. Maryland reduces the penalty for sodomy from death to ten years in prison starting in 1809 (still much less serious than rape, which remained capital at the discretion of the judge).

Clayton said...

At http://www.deathpenaltyinfo.org/documents/ESPYyear.pdf you can find the details of the executions. And interestingly enough, neither the 1810 case you mention, nor the mid-18th century Maryland execution that I have seen, nor the 1786 buggery execution in Pennsylvania, are in that list! There are probably a lot more instances.