Few people may realize that adultery is a crime in Wisconsin.

In fact, it is a Class I Felony, which can carry a fine of up to $10,000, or imprisonment of up to three-and-a-half years, or both.

But criminal defense attorney Steven P. Hurley said legal action against an adulterer is extremely rare.

He hopes another “outdated” law — allowing for the prosecution of same-sex couples living in Wisconsin who get married out of state — will receive the same attention from district attorneys.

“It should be prosecuted with the same zeal we prosecute adulterers,” said Hurley of Hurley, Burish & Stanton, S.C., in Madison. “I don’t think it poses a significant threat, but I hope I don’t have to eat those words.”

Hard Sell

Recent comments supporting the nearly century-old statute and implementation of a law allowing out-of-state same-sex couples to marry in California, is prompting Hurley and other attorneys to inform gay and lesbian clients of the possibility they could be prosecuted in Wisconsin.

Adopted in 1915, Wis. Stat. 765.04(1) holds that it is illegal for any person to go to another state or country, be joined in a union not recognized in Wisconsin, and then return to the state.

According to the statute, “Such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state.”

Hurley said the law was not drafted to chastise same-sex couples, but it could be interpreted to include gay and lesbian unions.

Penalties include a fine of up to $10,000, up to nine months in jail, or both, pursuant to sec. 965.30(1)(a).

In a July 9 interview with WKOW that aired on CNN.com, Wisconsin Family Council CEO Julaine K. Appling advocated for the prosecution of same sex couples under the law.

“You purposely left the state for another state and you get married and you know it’s not going to be legal where you reside and you have every intention of returning. That’s defrauding the government,” Appling said in the interview.

Appling could not be reached for comment, but Dane County District Attorney Brian Blanchard said it would be difficult to successfully prosecute a case under the current law.

“In this scenario, where someone goes to another state for a consensual ceremony and comes back to Wisconsin, I don’t think a Dane County jury would be interested in convicting that person,” said Blanchard.

Worth a Warning

Labor and Employment Law attorney Tamara Beth Packard said that while prosecution under the law seems unlikely, it is not impossible.

“I don’t think we should underestimate the level of animosity that some people have toward gay and lesbian couples who try and receive some legal recognition of their relationship,” said Packard of Cullen Weston Pines & Bach, LLP, in Madison.

On June 17, California became the first and only state to recognize same-sex partnerships as legal.** On July 15, the Massachusetts Senate voted to repeal a 1913 law prohibiting non-resident gay and lesbian couples from marrying in the state.

In 2006, Wisconsin voters supported a constitutional amendment recognizing marriage only as a union between a man and a woman.

Given the outcome of the vote two years ago, Packard said application of the archaic law is unnecessary.

“Marriage between same-sex couples is not prohibited in the state, the way marriage between cousins is,” said Packard. “That is the kind of stuff that law was originally designed to prevent.”

If a case does reach the courtroom, Packard said defense attorneys would line up to litigate the issue.

“A lawyer would love to take on a case like this pro bono and get the publicity,” said Packard. “I think most prosecutors are smart enough to not make martyrs out of gay and lesbian couples.”

This story contains content from the Associated Press.

** Note: California is the only state that allows same-sex couples who reside in any other state to get married there. Massachusetts currently joins only same-sex couples who reside within that commonwealth or who are from a limited number of other states. A couple from Wisconsin wishing to be married in Massachusetts would need to remain in the commonwealth for it to be recognized.