Legal Brief: Beware: Wisconsin Is Not for All Lovers

by JOAN KORB, [email protected]

Ah, it’s summer in Wisconsin: a time for fun and romance. Wisconsin, and Door County especially, have long been getaways for lovers, but not all lovers are welcome here. Just giving everyone a heads-up.

Wisconsin Statute Chapter 944, Crimes against Sexual Morality, says: “The state recognizes that it has a duty to encourage high moral standards. Although the state does not regulate the private sexual activity of consenting adults, the state does not condone or encourage any form of sexual conduct outside the institution of marriage. Marriage is the foundation of family and society. Its stability is basic to morality and civilization, and of vital interest to society and this state.”

Thank goodness Wisconsin does not have morality police, but you may be surprised – or even alarmed – to learn that adultery is a felony in Wisconsin! That should send shivers down the spines of some of the state’s elected officials because convicted felons cannot hold office in Wisconsin unless they’re pardoned. 

It may be a good time for those officials who are worried to seek preemptive pardons while Tony Evers is governor because he has granted pardons, unlike his predecessor. It’s just a suggestion; I don’t know whether it’s even possible, and I’m not going to research that issue. I just brought it up because I heard it mentioned a few years ago regarding possible federal crimes in Washington.

Some Wisconsin district attorneys have publicly stated that they are intent on prosecuting archaic Wisconsin laws, such as the 1849 law that bans abortion, so the adultery statute could get a brushing off. 

The Wisconsin Legislative Reference Bureau shows that adultery was already illegal in the Wisconsin Territory. The 1839 Territorial Law said that “every person who shall commit the crime of adultery shall be punished by imprisonment in the county jail, not more than two years, nor less than six months, or by fine not exceeding 300 dollars, nor less than 70 dollars, and when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery, and be liable to the same punishment.”

That territorial law made it into the same 1849 statutes that banned abortions in the state of Wisconsin and remains on the books today as Section 944.16.

Wisconsin’s current adultery statute is similar to the original: It simply forbids any married person from having sexual intercourse with a person who is not that individual’s spouse and bans any person from having sexual intercourse with a person who is married to another. 

Violation of this law is now punishable by up to three and a half years in prison and a $10,000 fine, or both. That’s 50% more incarceration and about the same maximum fine in today’s dollars, but the 1849 mandatory minimum would be more than $2,300 in today’s dollars. It’s lucky for any current violators that there is no mandatory minimum today.

Fortunately, Wisconsin abolished the death penalty in 1853. Mary Latham in Massachusetts wasn’t so lucky. The only known execution for adultery in the United States occurred in the Colony of Massachusetts in 1643, when 18-year-old Mary Latham was executed with her extramarital lover, James Britton.

As far as I can determine, Wisconsin last prosecuted someone for adultery in 1990 when Robert Eaton, a zealous prosecutor in Ashland County prosecuted a 28-year-old woman for adultery because her estranged husband and father-in-law went to the district attorney and complained about it in the midst of a divorce. The DA criminally charged the woman but ultimately dismissed the charge in exchange for the woman doing 40 hours of community service and two months of parenting counseling. 

Adultery remains on the books in 16 states – down from 27 in 1987, according to the Harvard Law Review. And Wisconsin is one of only three states where adultery is a felony – the others being Oklahoma and Michigan. It is potentially more expensive to be an adulterer in Wisconsin, but incarceration could be longer in Michigan (four years) or Oklahoma (five years). 

And don’t think you can escape to Illinois or Minnesota for your tryst – adultery remains a criminal offense in those states, too. Don’t say you weren’t warned!

Joan Korb is a former Door County district attorney and assistant district attorney. She currently serves as a special prosecutor for various Wisconsin counties. She lives in Egg Harbor.