Senators discuss benefits to maintaining crime of adultery

ANNAPOLIS — A bill that would decriminalize adultery in Maryland was the subject of discussion following its hearing before a Senate committee Thursday, where members considered the possible benefits of maintaining the law.

Though Del. Kathleen M. Dumais, D-Montgomery, who sponsored House Bill 267, referred to the law as “archaic” in written testimony sent to the Senate Judicial Proceedings Committee, committee members discussed a rationale for keeping it during a voting session after the hearing.

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and the committee chair, said Thursday adultery remains on the books in part to allow a party to a divorce to cite their Fifth Amendment privilege against self-incrimination if asked about it.

“That’s why it’s continued to be a crime but it’s a weird crime, right? It’s a $10 fine,” Zirkin said.

Adultery is classified as a misdemeanor in Maryland. The crime was charged three times in 2017, according to the Department of Legislative Services.

Sen. Robert G. Cassilly, R-Harford, said removing the ability to take the Fifth would lead to spouses trying to drag dramatic details of an affair out into the record.

“We decriminalize it, people are going to make a huge deal out of it,” he said.

Zirkin said if Maryland moves toward being a no-fault divorce state, proof of adultery wouldn’t be necessary in some divorce cases.

“The reality is if we had a no-fault system, there wouldn’t be a problem with that,” he said.

The committee did not vote on the bill Thursday.

The family and juvenile law section of the Maryland State Bar Association submitted testimony in favor of the bill because the law “serve(s) no true legal purpose” and cited the lack of use of the criminal charge.

The House Judiciary Committee adopted a favorable report for the bill by an 11-7 vote last month, with Republican members voting against it. The bill passed the House by a vote of 87-49, again with many conservative members voting in opposition.

Dumais said she was surprised the bill had only “squeaked out” of committee and said she understood the objection to be related to beliefs about the sanctity of marriage.

Del. Michael W. McKay, R-Allegany and Washington counties, spoke against the repeal on the House floor Feb. 16, saying deciminalization was “not the answer” to what he called the “national disaster” created by divorce.

“Divorce is killing America and Maryland,” he said. “Broken promises, mistrust, instability, shattered people.”