Many do not realize that if a person who is married has sexual intercourse with anyone other than their spouse, both parties are guilty of committing adultery. Under Wisconsin statute 944.16, this is a class I felony. This is punishable by a fine of up to $10,000, or 3 ½ years of imprisonment. In some cases, both.
In light of so many divorces centered on infidelity, many wonder as to why there are not more convictions of this class I felony. In fact, many wonder why it is usually not charged, or even mentioned during a divorce. The legislative intent of crimes against the family unit, 944.01, explains that the state recognizes its duty to encourage high moral standards. It goes on to say that even though it does not regulate sexual activity between consenting adults, it does neither condone nor encourage any form of sexual activity which falls outside the institution of marriage.
The reason why prosecutions on this matter are not as prevalent as one may think is due to the factors involved in successfully prosecuting the case. For starters, the claimant must bring evidence to the prosecuting attorney, and the local police department. At this point, the evidence must clearly define that a crime has taken place beyond a shadow of a doubt. Proof must be shown that sexual engagement has occurred between the two parties must be provided. The prosecutor will then decide whether or not the evidence is clear enough for a probable conviction. This is where your proof building will come into play. Anything short of a signed confession from both parties, or clear video or photographs will mean that your evidence must leave no doubt in the prosecutor’s mind.
This seems too daunting a task for many to undertake, however, this does not mean that adultery cannot be established. It only means that the claimant must ensure they have enough evidence that a sexual engagement between the two parties is indisputable. This would mean collecting emails, telephone logs, pictures (if any), text messages, eyewitness accounts, etc. In cases such as these, anything you collect may be of some value to your case.
If a conviction has been established, do not neglect to bring all materials regarding the case to your divorce attorney. Having this means having the ball in your court when it comes time to final judgment awards. It may take some time and courage, but remember – you are worth more than that. It is always in your best interest to follow through if a divorce is imminent.
Jeff Hughes, J.D.