Adultery and fornication: Can Coloradans tell the difference?

Before there was an Internet, there were people with long memories -- and two of them, former lawmakers John Bermingham and Jerry Kopel, have amazing stories of the last time Colorado grappled with the issues of adultery and fornication -- if there is any difference between the two.

Back in 1972, as the Colorado Legislature was weighing whether to get rid of laws that made adultery a crime, Jerry Kopel was a member of the House Judiciary Committee, and made what he calls an "egregious error" when questioning former Colorado Supreme Court Chief Justice O. Otto Moore:

Kopel: "Justice Moore, can you tell our committee the difference between adultery and fornication?"

Justice Moore: (After a short pause.) "Well, I have tried both, and I was unable to tell any difference."

Thirty-nine years later, the Colorado Legislature was again considering getting rid of the law outlining adultery -- and although the Senate passed the repeal, a House committee killed the bill, leaving adultery a crime, although one that is generally not punished -- n the legal system, at least.

As Kopel notes, adultery was one of the first laws on the books in the Colorado territory. As written in 1861:

"Any man or woman who shall live together in an open state of adultery or fornication, or adultery and fornication, every such man and woman shall be indicted, and on conviction shall be fined in any sum not exceeding two hundred dollars each or imprisoned in the county jail not exceeding six months. This offense shall be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy."

The penalties increased for each subsequent offense but there was an out, Kopel notes: "It shall be in the power of the parties offending to prevent or suspend the prosecution by their intermarriage, if such marriage can be legally solemnized, upon the payment of the costs of prosecution."

Then state-senator Bermingham was chair of the two-year effort to codify and
rationalize the penalties for almost all of what was to be considered criminal under Colorado law back in the early '70s, and although they were able to get rid of the law labeling fornication a crime, adultery was a tougher issue. "Adultery as a crime with no penalty was a good compromise in 1972 and a good compromise today," he writes in a letter published in the Denver Post today. Here's more:

It was my responsibility to explain the proposed new criminal code when it came to the floor of the Senate in 1972. All went well except for the removal of adultery as a crime. With Bible in hand, one of our members succeeded in treating adultery as a crime before this massive bill could be passed along to the House for its consideration and approval. The House would have none of this, a conference committee was appointed, and adultery as a crime with no penalty was the solution.

This was representative government at its best. That a large segment of Colorado's population viewed adultery as criminal, and still does, was clearly recognized. That its criminality should be removed because of its being grossly misused as the basis for threats and extortions in divorce proceedings was also recognized.

A crime with no penalty? That's an oxymoron, to be sure, but a good compromise. Today's legislatures and Congress need more of such stuff.

With a special session looming, the Colorado Legislature particularly needs it today. Otherwise, we could all get screwed.

For another historic take on adultery -- Roy Romer's six-minute smooch with a former aide -- read Patricia Calhoun's "Sealed With a Kiss."