Adultery as a Crime: Old Laws Dusted Off In a Wisconsin Case
By WILLIAM E. SCHMIDT, Special to The New York Times
Published: April 30, 1990
A 28-year-old woman will be arraigned next month in northern Wisconsin, where she is to stand trial on one of the rarest of criminal accusations: adultery.
No one in Wisconsin can recall the last time a county prosecutor sought to enforce the state's 19th-century law that requires sexual fidelity inside marriage. A felony punishable by up to two years in the state penitentiary and a fine of $10,000, adultery has not been an issue in Wisconsin courts since the early part of the century, lawyers say.
But the state's case against Donna E. Carroll has focused new attention on these relatively obscure statutes, which endure - although they are seldom, if ever, enforced - in the criminal codes of about half the states, including New York, Connecticut and Illinois.
Just as a much older story about adultery, Nathaniel Hawthorne's ''The Scarlet Letter,'' served as a morality tale of Puritanism and 17th-century New England, the state's decision to prosecute Mrs. Carroll has unfolded as a tale of contemporary morals and manners in northern Wisconsin.
Her lawyers, including counsel from the American Civil Liberties Union, argue that the law under which Mrs. Carroll is being prosecuted should be declared unconstitutional. The A.C.L.U., in particular, has cast her as the unfortunate victim of a district attorney who has allowed himself to become an instrument of vengeance in the hands of an angry husband.
The state, for its part, argues that it is representing the public good by pressing charges against Mrs. Carroll, because Wisconsin has a substantial interest in preventing adultery to support ''the stability and best interests of marriage and the family.'' And the local prosecutor said he had no choice but to enforce a law when confronted with evidence of a violation.
Ronald J. Allen, a professor at Northwestern University School of Law here, says that adultery statutues, like those banning fornication and sodomy, are seldom used but have remained on the books in many states because they are so closely tied to larger notions about public morality.
Mr. Allen said such laws have even inspired an aphorism among lawyers: ''They are on the books to help preserve our morality,'' he said, ''at the same time they are not enforced in order to preserve our conduct.''
Husband's Role Is Cited
Through her lawyers, Mrs. Carroll has denied committing adultery. In briefs filed on her behalf, lawyers have argued that the adultery statute violates Mrs. Carroll's right to privacy, equal protection, due process and freedom from cruel and unusual punishment. They also have questioned the fairness of prosecuting her because her husband at the time, Robert J. Carroll, admitted to his own extramarital affair but was not charged. A special prosecutor assigned to examine his case concluded there was insufficient evidence to bring charges, since the offense probably occurred outside Wisconsin while Mr. Carroll, a trucker, was on the road.
In an interview, District Attorney Robert E. Eaton defended his decision to bring charges against Mrs. Carroll. ''The law is on the books,'' he said. ''There was strong evidence presented to me of a violation. For me to decide not to prosecute would be, in effect, to declare the statute null and void. And that is not my role as district attorney.''
Under the Wisconsin law, a married person who has sexual intercourse with someone other than his or her spouse, or a person who has sexual intercourse with someone married to another, is guilty of adultery.
Custody Battle Over Son
Mrs. Carroll's case began last summer in Ashland, a town of 9,500 on the Lake Superior shore, in far northern Wisconsin, while the couple was going through a fractious divorce and custody battle over their 7-year-old son.
According to Mr. Eaton, Mr. Carroll came to his office and, with his father, swore out a criminal complaint accusing his wife of adultery, in violation of the state law.
The complaint was based mainly on an admission that they said Mrs. Carroll, a homemaker, made during a civil divorce hearing several months earlier, in March 1989. The hearing took place shortly after Mr. Carroll had filed for divorce after nine years of marriage.
According to the complaint, Mrs. Carroll told a Family Court hearing that she and another man had a sexual encounter inside the two-story frame home that she shared at the time with her son and husband, who was out of town on a long-haul truck trip.
Other Man Is Identified
The other man was identified in the court documents as Sherman Stenner, whom Mr. Carroll later described as an out-of-work truck driver he had befriended at least two years before. At a hearing, Mr. Carroll said he met Mr. Stenner at a truck stop in Madison, bought him a meal and lent him some money to help him get back on his feet.
Shortly after the sexual encounter at the Carroll house, the complaint states, Mrs. Carroll moved out and began living with Mr. Stenner.
Although Mr. Stenner is also liable to prosecution, under the statute, he was not charged, said Mr. Eaton, because there was no evidence implicating him in a crime beyond Mrs. Carroll's alleged admission. Mr. Eaton explained that Mrs. Carroll's Family Court testimony is sufficient to incriminate herself but not, under rules against heresay, to implicate Mr. Stenner.
Jay S. Moynihan, who is Mrs. Carroll's lawyer, says Mrs. Carroll denies she ever made an admission of an extramarital affair. She will plead not guilty and demand a jury trial, he said. Earlier this year, the court granted the Carrolls a divorce and awarded custody of their son to Mrs. Carroll, who now lives in Janesville, in southern Wisconsin.
On the Front Pages
''It is hard to believe the case could get this far,'' said Mr. Moynihan, who said he recalled the morning last summer when Mrs. Carroll's arrest was on the front pages of Wisconsin newspapers. ''I remember having this picture of people all across the state, sitting across the breakfast table from the their spouses, opening the newspaper and suddenly spilling coffee all over themselves.''
Among other things, Mr. Moynihan and Margaret J. Vergeront, a volunteer lawyer in Madison for the A.C.L.U., have argued that it is inconsistent for adultery to remain on the books as a criminal matter when the State Legislature has eliminated adultery as grounds for divorce.
''If there is a chance for a marriage to survive adultery - as surely many do - one can be certain that criminal prosecution, or even the threat of it, will destroy rather than enhance that chance,'' wrote Ms. Vergeront in her brief.
Sanctions against adultery are as old as the Bible. Adultery is expressly forbidden by the Sixth Commandment, and Old Testament scriptures called death the appropriate punishment. In colonial New England, punishment could also include public humiliation, as Hawthrone so poignantly described in ''The Scarlet Letter.''
Not a Great Deterrent
The heroine of his novel, Hester Prynne, was required to wear the letter ''A'' embroidered on her bosom as a mark of shame for bearing the child of a man who was not her husband.
Even so, there is little reason to believe that criminal sanctions now serve as much of a deterrence. Although there is broad disagreement among scholars as to its incidence, given the reluctance of people to discuss such behavior, some studies estimate that 30 to 70 percent of married people have engaged in extramarital sex.
The current array of criminal sanctions against adultery make up a bewildering patchwork of state law. According to an article in the Harvard Law Review, 27 states had statutes prohibiting adultery in 1987.
In Massachusetts and Michigan, like Wisconsin, adultery is a felony. In Michigan, it is punishable by up to four years in prison, and in Massachusetts by three years.
In contrast, adultery is a misdemeanor in Maryland, punishable by a $10 fine. Tom Smith, a lawyer with the American Bar Association, says some lawmakers in the state have suggested facetiously that Maryland would be better off if it enforced the law more vigorously, raised the fine to $1,000 - and repealed the state income tax.
A 1944 Case in New York
In New York, like Connecticut, adultery is also a misdemeanor, punishable by up to 90 days in jail and a fine of $100. According to McKinney's Consolidated Laws of New York, the last time anyone was prosecuted in New York for adultery was 1944.
Of the 23 states in which adultery is not on the books, at least three, Louisiana, New Mexico and Tennessee, have never punished it as a crime. Several others, including New Jersy, have abolished the statute as part of a general reform of their penal codes.
The constitional debate about the adultery statutes revolves around the issue of the right to sexual privacy among consenting adults. Although the United States Supreme Court, in a decision involving a Georgia sodomy case, recently refused to extend such a right of privacy to homosexuals, the Federal courts have generally ruled that private sexual conduct among heterosexuals is protected from state prescription.
What is still at issue, say civil libertarians, is whether that right of privacy also extends to a couple that includes at least one person married to someone else. The Massachusetts Supreme Judicial Court did uphold the statute, in a 1983 case of a woman who was arrested and charged with adultery after two vice officers in suburban Boston saw her flag down a van, get inside and have sexual intercourse with a man. Tactic Used by the Police? In Boston, according to a brief filed in the case, the police often would use the law against adultery, a felony, as a means of placing heavier penalties on prostitution.
In upholding the woman's adultery conviction, the court acknowledged that the statutes are rarely prosecuted, but it added, ''If any lack of prosecution of the crime of adultery indicates a general public disfavor with the statute, approriate means exist to address such disfavor in the Legislature, which has the power to change or repeal the statute.''
But over the years, when given the opportunity to repeal or abolish adultery statutues, legislatures in Wisconsin, New York and Maryland, among others, have refused to abolish the laws.
After Mrs. Carroll was charged with adultery, State Representative Scott C. Fergus, a Democrat from Racine, proposed a bill that would have decriminalized adultery in Wisconsin.
''I believe this is an area in which the state simply does not belong,'' said Mr. Fergus. But he said he never introduced the bill, after talking to a number of colleagues. ''Most of them told me they were very fearful of putting their name on it,'' he said.
Mr. Fergus said constituents flooded his office with letters condemning the bill as anti-family and immoral. ''Anyone who approaches this issue must approach it with extreme caution,'' he said, ''because it can border on political suicide.''
Correction: May 3, 1990, Thursday, Late Edition - Final An article on Monday about an adultery prosecution in Wisconsin misattributed a listing of states in which adultery was still prohibited by law in 1987. It was in The Harvard Journal of Law and Public Policy, not The Harvard Law Review. Also on Monday, an article about a study issued by the Carnegie Foundation for the Advancement of Teaching misidentified the study. It is titled ''Campus Life: In Search of Community.'' (Corrections in this space yesterday misstated the publication dates of both articles.)