Handing Out Scarlet Letters

By Andrea Sachs

When James Jakubowski's marriage was heading toward the rocks, he decided to take action: he called the police. Two weeks later, his wife Dawn was under arrest for adultery. Like a modern-day Hester Prynne, Dawn was soon the talk of the town, Norwich, Conn., a circumstance that does not dismay her husband. "People in this society need to hear that adultery is wrong and that it destroys families," he proclaims. "I believe in the institution of marriage." His wife's lawyer is less enthused. "The thoughtless and insensitive act by Mr. Jakubowski has caused enormous embarrassment and humiliation to all members of his family," she says.

Dawn, who denies the charges, is one of the unlucky people who have found themselves hounded by an angry spouse in a state where old-fashioned sex statutes are still on the books. In a quirky twist to the contemporary no- fault-divorce saga, venerable adultery laws are occasionally being invoked by quarreling marital partners, sometimes for vindictive purposes and sometimes to gain leverage in lengthy settlement negotiations. In the weeks after Dawn's arrest, two other Connecticut women and one man were also charged with adultery. They face the same possible misdemeanor punishment: up to a year in jail and a $1,000 fine.

Usually, the targeted spouse is a woman. "This is the '90s version of public flogging," says Catherine Blinder of the Connecticut Commission on the Status of Women. "Women have always been persecuted for infidelity." In July Donna Carroll, a Janesville, Wis., homemaker, completed 40 hours of community service and attended a parenting session after her estranged husband charged her with adultery. While she denied the allegation, she agreed to the punishment in order to avoid a trial and the possibility of up to two years in jail and a $10,000 fine.

The incidence of adultery laws, as well as statutes prohibiting fornication (two unmarried people having sex), traces a hig-gledy-piggledy pattern across the national map. Adultery is still illegal in about half the 50 states, including New York, Massachusetts and Michigan; enforcement of the strictures is normally a dead letter. But since there is no organized constituency to demand their repeal, the prohibitions remain as bludgeons to be picked up in marital brawls. Says Ronald Allen, a professor of law at Northwestern University: "Who wants to come out in public in favor of adultery?" Primarily, the American Civil Liberties Union, which wages a campaign against the statutes whenever they are debated.

The difficulties for heterosexuals branded with the scarlet letter are similar to those for gays, who are vulnerable to the most frequently invoked sex laws: those prohibiting sodomy. In 1986 the U.S. Supreme Court upheld the right of states to ban homosexual sodomy, and since then, gay and civil rights activists have been fighting the increasing number of prosecutions. Nor are sodomy laws exclusively aimed at gays; heterosexual sodomy is deemed an impermissible act in 18 states. "These laws criminalize our private lives and relationships," says Robert Bray of the National Gay and Lesbian Task Force. "And if it isn't 10 toes up and 10 toes down, heterosexuals risk going to jail too."

On the other hand, some conservatives and Fundamentalist Christian denominations praise the sex laws as an expression of a collective conscience, however they are used. "If these laws had been enforced with regularity in this country, then a lot more people would think twice about participating in sexually immoral acts," says Rebecca Hagelin of Concerned Women for America, a Washington-based lobbying organization. Warring spouses take note.

With reporting by Anne Hopkins/New York