KOPEL: STILL ON THE BOOKS
Adultery is nothing new in Colorado
This law has been on the Colorado statutes for 150 years and will likely remain in Colorado Revised Statutes for a few more decades. The subject? Adultery.
With the defeat in House Health Committee of Senate Bill 244 the present law remains on the books.
Yes, it is older than the state, and came into being through the territorial legislature in 1861. President James Buchanan, by proclamation February 28, 1861, made Colorado a territory. Abe Lincoln did not become president until March 1861.
The territory lost thousands of residents gained in 1860 and according to historians we dropped to 25,331 inhabitants in 1861. In order to make the ladies believe Colorado was civilized and safe for married women there were many laws passed to fight immoral issues such as adultery, fornication, and sodomy. All three were crimes.
Dale Tooley was elected Denver District Attorney in 1970 and one of his major advisors was retired Chief Justice of the Colorado Supreme Court Otto Moore. The two went to work to modernize Colorado criminal law through SB 262, a 102 page offering by Sen. John Bermingham (R) and Rep. Ralph Cole (R). Tooley and Moore wrote many of the amendments to the law.
The crimes of fornication and sodomy were deleted. Adultery was changed to the present statute:
“Any sexual intercourse by a married person other than with that person’s spouse is adultery, which is prohibited.”
And as lawyers tried to explain: “Prohibition” means you should not do it, but you are not going to be punished if you do. If the statute had stated, “is a misdemeanor” then CRS 18-1.3-501 would have come into play and set a jail time and fine for the guilty party. Most legislators did not understand the subtle result of the wording.
In 1973, as members of the House Judiciary listened to former Justice Moore testify on a sexual criminal statute, I made this egregious softball error by the question “Justice Moore can you tell our committee the difference between adultery and fornication?”
Justice Moore, after a short pause deadpanned, “Well, I have tried both and I was unable to tell any difference.”