Jailing the Cheating Spouse AND Their Lover?

Is it possible to have your cheating spouse and their paramour thrown in jail for fornicating with someone other than you?  It seems like an antiquated concept, right?  This relatively recent state law has some strong similarity to the punishments enacted on cheating women in days of old (like in the famous novel “The Scarlet Letter”).  So, let’s dive in and take a hard look at the criminal component of adultery by examining the language of this relatively new state statute (remember, the MS Code has been around for about a century now).

MS Code § 97-29-1 (2013)

“If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.”

Many of you are probably thinking the same thing…here is my chance to punish that cheating low-life and that loser they are cheating with.  Is this statute ever even enforced?  It is very tempting to exercise this potential weapon which allows the possibility of prosecution for bad behavior..after all, no one likes a cheater.  Who would have thought to press charges for adultery after all…it is certainly a novel concept and one that is rarely, if ever utilized.

I spent a bit of time looking for relevant Mississippi cases where someone has been prosecuted for a violation of this code section (statute) and found exactly zero of them (sidenote:  the databases only reflect appeals so there may have been a small handful where the person chose not to take an appeal, but not likely).  Years ago there was in fact a statute that has subsequently been overturned that made extensive communication, even without fornication or other sexual acts with a married person a crime and was dubbed as “criminal conversation”.  That law has since been overturned by the Supreme Court of Mississippi.  Wow, how times have changed.  In the modern era of internet communication, we may all have been found guilty at some point in time.

While we have certainly taken a step back in terms of the magnitude of the codification of crimes as they relate to state statute, not seeing a single prosecution of crimes regarding adulterous or potentially adulterous behavior is somewhat surprising.  Even now, the standard is lighter in terms of what one must prove to show that a crime has been or is being committed…but the outcome is still that zero people have ever sat in a jail cell for adultery is the new reality.  Many will ask why this is the case, and for good reason. 

My final thoughts are pretty simple–and somewhat obvious to those who follow the criminal justice system.  First, there are simply not enough jails to house all of the cheaters out there.  Prosecutors have bigger fish to fry (rape, murder, assault)… everyday.  Although the legislature has made clear their position as to the seriousness of adulterous acts, enforcement is not quite so easy.  If we prosecute every cheater, as a society we will likely be too busy to pay attention to the violent crimes that run so rampant.  There is only so much space in the county lockup.

On a positive note for those of you dealing with a cheating spouse, you can take advantage of the public policy against your cheating partner by pointing to the chancery court that an actual crime is being committed.  It may not land the cheater, or their lover in jail, but at least it will magnify the gravity of your situation and potentially reap a better civil outcome.  After all, do not forget that public policy is on your side, at least this time.

Tags: , , ,