Many of the sex laws in America have been in place for more than 100 years. They are based on the conservative English laws that the early Puritan colonists brought to this country. They vary widely from state to state and are not always enforced. During the last 25 years, certain states have liberalized their sex laws. Twenty-six states have eliminated all penalties for voluntary, private sexual behavior between adults—gay or straight.
Many states continue to keep their old statutory sex laws, even though most people generally ignore them. But keeping outdated sex laws “on the books” is dangerous. These laws are often used to harass certain individuals or groups. People are easily entrapped because they are unaware that they are breaking the law. They do not know that they may be punished for private sexual behaviors that they mistakenly believe are legally acceptable. Many lawmakers fail in their attempts to get outdated laws off the books because conservative groups fight to keep strict limitations on personal sexual expression.
Sex between unmarried people, called fornication, is still against the law in 12 states. Each of these states defines fornication differently. For example, cohabitation is against the law in several states. Since 2.9 million unmarried couples live together in the United States, cohabiting couples in these states may not be aware that they are breaking the law against fornication. In California, a man may not know he is committing a crime if he promises to marry a virgin and has sex with her before their wedding. But he is guilty of sexual seduction and can be fined and put in jail. As recently as 1996, a 17-year-old single mother in Idaho was found guilty of fornication. She was given a 30-day suspended jail sentence under a 75-year-old law. The young woman said that she did not even know what fornication was.
Adultery is sexual intercourse between a married person and someone who is not his or her spouse. In the past, divorces were granted based on a husband charging his wife with “criminal communication” and the other man with “alienation of affection.” It was not until the Fourteenth Amendment to the U.S. Constitution was passed in 1868 that wives were given the same legal right to divorce their husbands. Women were extended the same rights in divorce as their husbands had always enjoyed.
In 1969, adultery was a crime in 45 states, but by 1985, only 25 states punished people for adultery. In states such as Massachusetts, adultery is still a crime, punishable by a three year prison sentence and a fine of at least $500.
A more common term for sex outside of marriage is extramarital sex. Most extramarital sex is clandestine, or hidden from one’s spouse. In some marriages, however, extramarital sex, or co-marital relationships, are agreeable to both partners. These marriages are called open marriages and became popular during the 1970s.
In the United States, the incidence of extramarital sex is dropping. Prior to the 1990s, married men and women reported increasing rates of sex outside of marriage. Married women were catching up to married men in the number of their extramarital partners. More recent surveys show that extramarital sex is decreasing for both men and women.
This may be happening for several reasons. More people are marrying later in life, after they have had a variety of premarital sexual experiences. As a result, they may be more willing to commit to a sexually exclusive marriage. Others may be afraid of sexually transmitted infections, particularly AIDS.