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Bill to repeal adultery returns to General Assembly

Del. Kathleen M. Dumais, D-Montgomery, says legislation creating a path to emancipation for minors should allay concerns some have about a bill banning marriage for minors. ‘The purists regarding the age of marriage think that it really should just be 18, period, but I do think it will be more accepted by members if there is a process where someone can ask for an exception to the minimum age,’ she says. (File photo)

Del. Kathleen M. Dumais is again sponsoring a bill to decriminalize adultery. The measure passed the House but died in a Senate committee last year. (File photo)

A bill to decriminalize adultery has returned to the General Assembly after failing in 2018 due to concerns about its impact on parties’ ability to “plead the Fifth” in divorce cases.

Del. Kathleen M. Dumais, D-Montgomery, is again sponsoring the bill, which she promised to do last year after it passed the House but died in a Senate committee.

“This simply is taking something off the books that is not used, is archaic, and I don’t really see the point,” Dumais told the House Judiciary Committee Thursday.

Adultery is a misdemeanor subject to a $10 fine in Maryland. In fiscal 2018, it was charged three times and no one was convicted, according to legislative analysts. Maryland is one of 19 states that criminalizes adultery.

Dumais said the repeal does not affect adultery as a ground for divorce or as a type of fault, which can factor into negotiations and custody disputes.

Dumais, a family law attorney, said that it is rare to obtain a divorce judgment on the grounds of adultery and that she can remember doing so only a handful of times in nearly 30 years of practice.

Last year, Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chair of the Senate Judicial Proceedings Committee, where Dumais’ bill died in 2018, said it was his understanding that the crime 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 adultery.

Dumais said if a client has had an extramarital affair she advises them to disclose it rather than exercise their Fifth Amendment right, because the only question is whether the adultery contributed to the breakup or harmed any minor children. Plus, she said, there is usually other evidence that an affair took place.

“I think it is a silly procedural move and I don’t have my client hide it,” she said.

James Milko, immediate past chair of the Maryland State Bar Association’s Family and Juvenile Law Section Council, spoke in support of the bill and said present members of the section could not remember having seen an adultery prosecution. He said the threat of prosecution often was used to try to gain an advantage in divorce proceedings.

“I would hazard a guess that 10 out of 10 Marylanders won’t even know that adultery is a crime,” he said. “They certainly don’t want the court acting as the morality police.”

No one spoke in opposition to the bill.

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