Legal Question in Criminal Law in Illinois

My husband is on probation in Illinois. He has moved in with his mistress. Who instigated the situation that lead to the jail time and probation. My question is since adultery is on the books as a class A misdemeanor in our state does his living there violate his probation?

Please note that it does fall under the "open and notorious" stipulations. I found out about the arrest and affair on the morning news with everyone else in central Illinois. Reports which continued for days. And were aired again each step of the trial process.

below are the statue codes.

"The act of adultery (sexual infidelity to your legitimate spouse) is regarded as an offense by the state's criminal code. The law refers to both married people committing adultery,as well as to those who are non-married but have sexual intercourse with a married person.

Adultery Definition

According to the Criminal Code,Subdivision 25,Section 11-35 (formerly 720 ILCS 5/11-7),a person commits adultery when "he or she has sexual intercourse with another not his or her spouse,if the behavior is open and notorious." The latter means that the act is known by the public (by the adulterer's spouse or anyone else) and is at odds with the community's accepted moral values.

Married Adulterers

As Section 11-35 continues,a married person is guilty of adultery when he willingly accepts sexual intercourse with someone other than his spouse. Therefore,cases of forced intercourse (rape) are not regarded as acts of adultery. It also is the most easy case of adultery to prove,as no sane person can forget his marital status at any point.

Unmarried Adulterers

An unmarried person is liable for prosecution if "he knows that the other person involved in such intercourse is married." Therefore,it is a defense to prove that you --the unmarried defendant -- were not aware in any way (for example,by spotting an engagement ring,observing family photographs or being warned by your married partner or a third party) about the other person's marital status.

Penalty

Adultery is a Class A misdemeanor in the state of Illinois. According to Section 5-4.5-55 of the Illinois Unified Code of Corrections (730 ILCS 5/5-4.5-55),a Class A Misdemeanor is punishable by a fine not exceeding $2,500 for each offense. Furthermore,the fine may be imposed in addition to a sentence of conditional discharge,probation,periodic imprisonment or up to 1 year incarceration."

Asked on 4/10/13, 7:07 am

1 Answer from Attorneys

Sal Sheikh www.BetterCallSal.com
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You pose a VERY interesting question.

This law is indeed on the books.

Here is an article I found.

http://articles.chicagotribune.com/1997-07-11/news/9707110143_1_adultery-attorney-public-defender

I have never encountered anyone or had a peer encounter someone being charged under this law.

The element of "open and notorious" may be a difficult hurdle to overcome in the prosecution of this crime.

You would need to contact your local PD and or States Atty's Office and talk with them.

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Answered on 4/10/13, 9:46 am

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