Adultery Law in Colorado
May 10, 2011
By Jerry Kopel
This law has been on the Colorado statutes
for 150 years and will likely remain in Colorado Revised Statutes for a
few more decades. The subject? Adultery. With the defeat in House Health
Committee of SB 244 the present law remains on the books.
Yes, it is older than
the state, and came into being through the territorial legislature in
1861. President James Buchanan by proclamation February 28th, 1861 made
Colorado a territory. Abe Lincoln did not become president until March,
The territory lost thousands of residents gained
in 1860 and according to historians we dropped to 25,331 inhabitants in
1861. In order to make the ladies believe Colorado was civilized and safe
for married women there were many laws passed to fight immoral issues such
as adultery, fornication, and sodomy. All three were crimes.
Dale Tooley was elected
Denver District Attorney in 1970 and one of his major advisors was retired
Chief Justice of the Colorado Supreme Court Otto Moore. The two went to
work to modernize Colorado criminal law through SB 262, a 102 page
offering by Sen. John Bermingham (R) and Rep. Ralph Cole (R). Tooley and
Moore wrote many of the amendments to the law.
The crimes of fornication and sodomy were deleted. Adultery was changed to
the present statute:
"Any sexual intercourse
by a married person other than with that person's spouse is adultery,
which is prohibited."
And as lawyers tried to
explain: "Prohibition" means you should not do it, but you are not going
to be punished if you do. If the statute had stated "is a misdemeanor"
then CRS 18-1.3-501 would have come into play and set a jail time and fine
for the guilty party. Most legislators did not understand the subtle
result of the wording.
In 1973, as members of
the House Judiciary listened to former Justice Moore testify on a sexual
criminal statute, I made this egregious softball error by the question
"Justice Moore can you tell our committee the difference between adultery
and fornication ?"
Justice Moore, after a short pause dead-panned
"Well, I have tried both and I was unable to tell any difference.".
(Jerry Kopel served 22 years in the Colorado House.)