[MysticCat]

Originally Posted by JonoBN41

This sums up the points I was concerned about quite well, although I think MysticCat meant to say, "making adultery illegal would not pass federal constitutional muster."

I did indeed. Thanks for catching that.

Maybe it would; maybe it wouldn't. I still don't understand how the prospect that a law might be unconstitutional can be a reason for non-enforcement. In other words, it's still the law until stricken from the books. Right? A constitutional challenge would come later.

As much as anything, it's a matter of resources. District Attorneys (or whatever they are called in SC) have too much on their plates as it is. They're not likely to use their resources prosecuting adultery cases if there is a reasonable likelihood that a conviction would fall as unconstitutional. Plus, if the governor is the only person whose been charged with adultery in as long as anyone can remember, if I were his lawyer I'd argue selective prosecution. DAs have enough to do with serious crimes without messing with it.

On the other point, why would it matter where the adultery took place? Sanford and his wife are residents of South Carolina and fall under SC law. If he married his mistress, would he not be guilty of bigamy? Would it be perfectly fine for him to have wives in Argentina, Georgia, North Carolina, etc., just as long as he doesn't have two wives in SC? I think not. By the same token, it shouldn't matter where the adultery took place.

But it does. What constitutes the crime of adultery is sexual intercourse with someone other than your own spouse or with the spouse of someone else. If the intercourse doesn't happen in South Carolina, then no South Carolina law has been broken. No state can criminalize something that happens outside that state's jurisdiction.

Bigamy would work similarly. If the first marriage was entered into in South Carolina, and the second one in Georgia, then it is Georgia where the crime of bigamy would have been committed. What happens in SC or elsewhere is simply that the second "marriage" is not recognized. That is unless the bigamist comes back to SC and holds himself out as married to spouse number two there. I'm not sure, but that might create a situation where SC would have jurisdiction.