When Gov. David A. Paterson held a news conference in Albany on Tuesday and disclosed that he had had several extramarital relationships several years ago, he said at one point, “I didn’t break the law.” Well, actually…

Several City Room readers this week have pointed out that adultery is still, technically, a crime in New York State.

Section 255.17 of the state penal law states, “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a class B misdemeanor.” A class B misdemeanor is punishable by up to 90 days in jail or a $500 fine.



In reality, of course, the law is rarely enforced. About a dozen people have been charged with adultery since the early 1970s, most of them upstate. (Most of the charges were dismissed, or apparently were dropped after the defendants pleaded guilty to other charges.)

The origins of New York State’s criminal ban on adultery seem to lie in the Progressive era. The law took effect on Sept. 1, 1907, according to letter to the editor published in The Times that year.

Raoul L. Felder, a well-known divorce lawyer in Manhattan whose clients have included Rudolph W. Giuliani, says that over four decades of practice, he has had many an enraged client demanding that Mr. Felder refer their spouse’s infidelity for criminal prosecution.

Mr. Felder, whose office window looks on to the Palace Hotel in Midtown Manhattan, said he usually offers this standard reply: “You’re right. It is a class B misdemeanor. Come over here behind my desk. Look across the street. Right now, the criminals are hard at work.”

Mr. Felder, who is also a former federal prosecutor, said the criminal ban on adultery has no practical significance. “It’s a celebration of hypocrisy, with a nod of the head to religion over reality,” he said.

He added, “Adultery is the last symptom of the disease. It’s not the disease.”

While no one is really at risk of being jailed for adultery, adultery still has tremendous significance in family law, said Alton L. Abramowitz, another divorce lawyer.

Adultery is one of three principal grounds for divorce in New York State, along with abandonment for a period of more than a year (or abandonment in the form of refusal to have sexual relations) and cruel and inhuman treatment, which includes both mental and physical cruelty.

Under New York law, Mr. Abramowitz said, in a divorce case, adultery can only be proven by the testimony of a third person who is not a party to the action and not a party to the adultery. “That’s how private detectives make a living,” he said.

There are three basic defenses to an adultery claim: forgiveness by the offended spouse; condonation, or the consent of the non-adultering spouse to the adultery; and recrimination (the notion that two adulteries cancel each other out, legally speaking).

Mr. Abramowitz said he thought of the legal implications when Governor Paterson and his wife, Michelle Paige Paterson, suggested in news accounts and then in a press conference that they had both had affairs. “From a legal standpoint, neither of them is entitled to a divorce,” he said, noting the apparent adultery by both spouses. “And they may both be beyond the five-year statute of limitations. I was very impressed that they were able to get their marriage back together again, I will tell you. Very few people are able to do that once they learn that the other party to the marriage has strayed.”

Mr. Abramowitz said it was wise of Governor Paterson to come clean. As to whether the new governor faces the prospect of criminal charges, he said, “Absent a Christian fundamentalist replacing Bob Morgenthau, I doubt it.” (He was referring to the Manhattan district attorney, Robert M. Morgenthau, who would have jurisdiction over crimes committed at hotels in the borough.)