Business Law 101 / ADULTERY AND ABORTION

By Albert Kelley

WARNING: THIS COLUMN DEALS WITH ISSUES OF A MATURE NATURE. 

There is a criminal statute on the books that many are not aware of.  It is the crime of adultery. Under Florida Statute 798.01, it is a second-degree misdemeanor for two people to live in open adultery.  In other words, if two people are living together while one or both are married to other people, they can be arrested and sent to jail or fined.  This statute is rarely enforced; the last reported mention of it was in 1989. Part of this is due to the difficulty of proof. The law does not make the act of people married to others having sex illegal- the Courts have affirmed that an occasional act of adultery is not deemed a crime.  But if two parties are living together while married to others and having sex, and the state can prove that, then they may be charged with a misdemeanor and jailed for up to 60 days or fined $500 (It is not illegal to merely cohabit-sex must be involved). It does not require both of the parties to be married; the law specifically states that if either of the persons living in an open state of adultery are married, both are guilty of the offense. 

For over 140 years in Florida, it was illegal for an unmarried man and woman to live together.  Amazingly, this law was just repealed in 2016. Today there is no law restricting unmarried people, regardless of gender, from living together and having sex.  So long as neither are married to someone else. 

While the state no longer outlaws having sex between unmarried persons (although that law was repealed just 36 years ago), the State has already addressed the issue of what happens when a person becomes pregnant.  The state has made some abortions and actions regarding abortions illegal. The State legislature has some limitations on how far these laws can go. The United States Supreme Court has addressed the issue to some point in Roe v. Wade, which the State has to follow.  To this end, the State law has outlawed all abortions during the third trimester. Further, regardless of the state of the pregnancy, unless there is an emergency, the abortion must occur in a hospital, abortion clinic or physician’s office. A violation of either of these provisions is a second-degree misdemeanor. 

To strengthen the law against abortion, the state has created laws that make finding an abortion alternative more difficult.  It is illegal in Florida to print, publish or distribute, or otherwise advertise any abortion services or gives a reference or even just a hint as to where a person can obtain an abortion. A violation of this provision is a first degree misdemeanor. This means that it is actually a more harsh crime to advertise the ability to obtain an abortion than it is to have an abortion.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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