O.C.G.A. § 16-6-19 (2019)
Adultery
A married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse and, upon conviction thereof, shall be punished as for a misdemeanor.
History
Laws 1833, Cobb’s 1851 Digest, pp. 814, 815; Code 1863, § 4419; Ga. L. 1865-66, p. 233, § 2; Code 1868, § 4460; Code 1873, § 4534; Code 1882, § 4534; Penal Code 1895, § 381; Penal Code 1910, § 372; Code 1933, § 26-5801; Code 1933, § 26-2009, enacted by Ga. L. 1968, p. 1249, § 1.
Annotations
Cross references. - Adultery as
grounds for divorce, § 19-5-3. General rule of competency, § 24-6-601. Abolition of right of action for adultery, alienation of affections, or criminal conversation, § 51-1-17. Law reviews. - For article, ‘‘Misdemeanor Sentencing in Georgia,’’ see 7 Ga. St. B. J. 8 (2001).
JUDICIAL DECISIONS Sexual intercourse is element of offense. - Since ‘‘sexual intercourse’’ is a necessary element of both adultery and prostitution, it is logical to conclude that the definition of sexual intercourse should be uniform in both instances. Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984). Sexual intercourse is an element of the offense of adultery. Bridges v. Bridges, 197 Ga. App. 608, 398 S.E.2d 860 (1990). Both extramarital homosexual and heterosexual relations constitute adultery. - A person commits adultery when he or she has sexual intercourse with a ‘‘person’’ other than his or her spouse. Therefore, both extramarital homosexual as well as heterosexual relations constitute adultery. Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981). Consensual sodomy has been merged into the offenses of fornication and adultery. Allen v. State, 170 Ga. App. 96, 316 S.E.2d 500 (1984). Consequences in alimony suit. - Husbands have no vested right to commit
adultery without suffering adverse civil consequences in alimony suit. Such right could not possibly exist, because in Georgia adultery is a crime. Bryan v. Bryan, 242 Ga. 826, 251 S.E.2d 566 (1979). Instruction on adultery as provocation unwarranted. - Because none of the parties were married, an instruction regarding adultery as a provocation for voluntary manslaughter was not warranted. Tepanca v. State, 297 Ga. 47, 771 S.E.2d 879 (2015). In a prosecution for malice murder, refusal to give an instruction on provocation caused by the victim’s ‘‘adulterous conduct’’ was not error because defendant and the victim were not married and, in order to prove adultery, a marriage must be shown. Somchith v. State, 272 Ga. 261, 527 S.E.2d 546 (2000). Cited in Pace v. City of Atlanta, 135 Ga. App. 399, 218 S.E.2d 128 (1975); Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977); Smith v. Price, 616 F.2d 1371 (5th Cir. 1980).
RESEARCH REFERENCES Am. Jur. 2d. - 2 Am. Jur. 2d, Adultery and Fornication, § 3 et seq. C.J.S. - 2 C.J.S., Adultery, § 1 et seq. ALR. - Right of injured spouse to discontinue prosecution for adultery, 4 A.L.R. 1340; 61 A.L.R. 973. Conspiracy to commit adultery or other offense which can only be committed by the concerted action of the parties to it, 11 A.L.R. 196; 104 A.L.R. 1430. Isolated acts of sexual intercourse as constituting criminal offense of adultery or fornication or illicit cohabitation, 74 A.L.R. 1361.
Conviction or acquittal on charge which includes element of illicit sexual intercourse as bar to prosecution for adultery, 94 A.L.R. 405. Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933. Validity of statute making adultery and fornication criminal offenses, 41 A.L.R.3d 1338. Spouse’s confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.