Effort to Remove Outdated Adultery Law Fails in Virginia

The legislation of morality continues despite Virginia's outlier status.


Vaishak Suresh / Flickr

Last week, the Virginia Senate killed a bill that would have decriminalized adultery in the state—voiding a law that has been used to tack criminal penalties onto more than eight cases over the past decade.

Introduced by Sen. Scott Surovell (D–Fairfax), SB 174 would have reduced adultery from a criminal issue to a civil one, maintaining the small associated fine (no more than $250). As it currently stands, adultery is a Class 4 misdemeanor. Although this might not sound like severe government intrusion at first glance, Virginia is a stubborn outlier compared to other states, 13 of which have repealed similar adultery statutes in recent years. Today, only about a dozen states still treat the act as a crime.

The bill was killed after minimal debate, with several notable Democrats (including former gubernatorial hopeful Creigh Deeds of the 25th District) voting against it. If passed, SB 174 would not have had a significant fiscal impact on the state, but as divorce attorneys in Virginia point out, a criminal adultery conviction can affect how assets are divided up in divorce proceedings as well as alimony payments.

Additionally, the fact that the matter remains criminal often complicates divorce proceedings, as it allows cheating spouses to plead the Fifth and protect themselves against self-incrimination. For this reason, Surovell's bill was endorsed by Family Foundation, a social conservative organization focused on promoting a "biblical worldview" that believes demoting the matter to a civil issue would provide more recourse for wronged spouses.

Albeit rarely used, the adultery statute still affects ordinary people and forces the state's legal system to commit time and resources to enforcing morality. John R. Bushey Jr. of Luray, a prominent lawyer, was convicted under the adultery statute in 2004. Exhausted from a long legal battle after much flip-flopping between guilty and innocent pleas, Bushey finally accepted community service. The case generated widespread pushback againt the outdated law. As Jonathon Turley wrote for The Washington Post that year:

Imagine the work for the courts if prosecutors vigorously enforced the laws against fornication, which is generally defined as premarital sex—a crime that a 1988 study found was practiced by more than 75 percent of women and more than 80 percent of men by the age of 19.

Despite Maryland's modest $10 adultery fine and D.C.'s complete removal of adultery laws from the books, Virginia remains firmly committed to intruding in people's lives over moral questions like adultery.