ABSTRACT
Many acts considered crimes in earlier time periods are either no longer the subject of criminal statutes, or if such statutes are still in a state penal code, they are anachronisms and never prosecuted. One example of this is adultery, which was an ecclesiastical offense and part of common law. In fact, it was a capital offense in 1650.1 In this country, the offense was punishable in the common law courts when so provided by statute.2 Under the original law of adultery, only the woman needed to be married because it was, in essence, an issue of property (of the woman) and inheritance (since parentage would be in question).3 Eventually, statutes included both unmarried and married men and women in the definition of parties, with the proviso that at least one of the parties had to be married to another. The developers of the Model Penal Code chose not to include any such statute and most states have eliminated their adultery statutes, although there are some still in existence, and the few still in existence often require “open and notorious” or “continuous” relationships as part of the actus reus.4
