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The fact that the Edwards and Ensign investigations have not focused on adultery itself does not mean, of course, that adultery is never illegal. While adultery is not a federal crime, it remains listed as a crime in some states. Ensign's home state, Nevada, is, ahem, not one of them. But, Edwards' home state, North Carolina, is. A North Carolina "fornication and adultery" statute makes it a crime for a man and woman who are not married to one another to "lewdly and lasciviously associate, bed and cohabit together." In a 2006 decision, a North Carolina lower court judge struck down this statute as unconstitutional, citing a 2003 U.S. Supreme Court ruling that a Texas ban on sodomy was unconstitutional. Therefore, the legal status of adultery statutes remains uncertain.
Nonetheless, they remain on the books in several states and could conceivably be enforced.
There are, of course, many reasons for a politician not to have an extramarital affair. Morally, most of us would agree that adultery violates one of the sacred vows of marriage. Politically, news of an extramarital affair can be devastating to a politician's image and can cause an immediate drop in popularity with voters. Yet some marriages survive adultery, and some political careers withstand the public reaction to it. Sen. David Vitter (R-La.), for example, easily won re-election last year despite admitting to adultery. And President Bill Clinton remains a popular political figure despite his own extramarital affairs.
The investigations of Edwards and Ensign are reminders that, as if the moral and political reasons not to commit adultery are not enough, there is another reason for politicians not to do so: the law. Affairs and cover-ups cost money. Lots of it. And whenever politicians and large sums of money intersect, the murky federal campaign finance laws are implicated. Because of those laws, payments to the family of Ensign's former mistress could result in criminal liability for Ensign. And payments to Edwards' former mistress could have the same result for Edwards. Oh, what a tangled web.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.