Taking the Fifth: No Longer an Option When it Comes to Adultery in Massachusetts

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Pursuant to 2018 Session Laws Chapter 155, Section 2 (An Act Relative to Reproductive Health), Massachusetts's outdated law criminalizing adultery was repealed. The Governor approved the law on July 27, 2018.

2018 Session Laws Chapter 155, Section 2 specifically repealed Massachusetts General Laws Chapter 272, Section 14 (Adultery), which read:

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Interestingly, Massachusetts General Laws Chapter 208, Section 40 (Cohabitation after divorce) has not yet been repealed, which states that "[p]ersons divorced from each other cohabitating as husband and wife or living together in the same house shall be held to be guilty of adultery." Senate Bill Number 856 (An Act Relative to Archaic Laws), which is presently pending in the current legislative session, proposes to repeal this law.

While adultery may not have been prosecuted recently in Massachusetts, its criminalization left open the door for parties going through a divorce to assert the Fifth Amendment privilege against self-incrimination (and the Massachusetts counterpart provided by Article 12 of the Declaration of Rights) during discovery or at a deposition or trial when asked about an extramarital affair. A party's assertion of the privilege and refusal to answer, however, allowed the Judge to draw an adverse inference or to impose sanctions on the party. When assessing the effect of a party's assertion of the privilege, the judge was "to balance any prejudice to the other civil litigants which might result . . . against the potential harm to the party claiming the privilege if he is compelled to choose between defending the civil action and protecting himself from criminal prosecution."Wansong v. Wansong.

Now that the statute criminalizing adultery has been repealed, parties going through a divorce in Massachusetts can no longer invoke the privilege against self-incrimination to attempt to shield themselves from answering questions or producing information related to extramarital affairs.

For questions about divorce, divorce litigation, or other developments in the area of family law, contact our attorneys at Fitch Law Partners LLP. 

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