Bill to decriminalize adultery clears House committee

DENVER — Rich Harris, who owns Colorado’s largest family marriage law firm, can’t recall or even imagine a case in which anyone has faced criminal charges related to adultery, which is illegal.

Technically.

“I’ve never heard of anybody prosecuted under this statute,” Harris told FOX31 Denver Wednesday. “I’d venture to guess most attorneys don’t even know it exists.”

State Rep. Daniel Kagan is sponsoring legislation that would repeal the antiquated statutes that make adultery illegal and threaten “innkeepers” with fines and even jail for renting rooms to unmarried couples; House Bill 1166 is up for its first hearing at the Capitol on Thursday.

“This is something that is archaic, it’s out of date, and it really is an extension of the power of government beyond where it has a reason to go,” Kagan told FOX31 Denver. “This bill keeps the police out of our bedrooms.”

Harris, who doesn’t think the legislation will have any real-world effect, still supports it.

“It’s fascinating to me that this law is even out there still, and I commend the legislature for removing it,” he said.

The adultery statute itself is actually older than the state of Colorado itself. Passed when Colorado was just a territory, the measure was intended to lure women to the west when it was still a rugged, violent place.

Fornication and sodomy were also made illegal in the mid-nineteenth century, but those laws have long since been repealed. The adultery statute was merely changed so that those who commit adultery can’t be punished by law.

In Colorado, now a “no fault” state when it comes to divorce law, adultery hasn’t impacted the division of property or child custody matters for decades, even though it’s as common as ever.

“Sadly, adultery impacts a lot of our divorce cases. We see it literally every single day,” Harris said. “But ‘no fault’ divorce means just that. It doesn’t matter why people are getting divorced.”

Last year, Kagan ran this same bill but was unsuccessful, when Republican lawmakers, and one Democrat, decided to keep the statute, however obsolete, rather than risk sending a message that they were somehow condoning adultery.

But some libertarians support the legislation.

“It doesn’t make sense to have laws on the books that are never enforced,” said Jon Caldara, president of the Independence Institute, a right-leaning think tank based in Denver. “It’s just one more thing government has in its pocket that it can potentially hassle you with.”

In Kagan’s view, repealing an antiquated adultery statute doesn’t equate to condoning the behavior itself.

“I don’t think any of us wants to see adultery going on,” he said. “The question is do we want the police to have the right, indeed the duty, to inquire as to what we are doing in our bedrooms. I think the answer is no.”

UPDATE: On Thursday afternoon, the House Judiciary Committee voted 8-3 in favor of House Bill 1166, after a hearing dominated by religious groups with concerns about decriminalizing adultery.

One Republican, Rep. Carole Murray of Castle Rock, voted with the panel’s seven Democrats to move the bill forward.

In his remarks to the committee, Kagan noted that there have been a handful of charges sought in recent years based on the outdated statute, and he argued that it’s likely that attorneys still use the threat inherent in the statute for leverage in legal proceedings.

The legislation now heads to the full House for debate.