Gov. Sanford Is a Cheater. Is He Also a Criminal?

Technically, yes.

Glenn McCall of the Republican National Committee is organizing a rally in Columbia, S.C., for Wednesday or Thursday to demand that Gov. Mark Sanford resign. After confessing to a yearlong affair with an Argentinean woman last week, Sanford may have lost his moral authority—but did he do anything illegal?

Technically, yes. Extramarital sex is illegal in South Carolina. “Habitual carnal intercourse” with someone other than your spouse is a crime, even if it’s committed outside of the Palmetto State. If Sanford were tried and convicted, he could be slapped with a fine of between $100 and $500 and face a year of jail time. But legal experts say there is almost no chance that Sanford will actually be prosecuted, much less locked up. No one in South Carolina has been prosecuted on an adultery charge since 1909.

Sanford’s admitted infidelity could, however, become an issue if he or his wife decides to end their marriage. South Carolina usually requires a one-year separation period prior to a divorce. But since adultery is one of the four grounds for fault (the others are desertion, habitual drunkenness, and physical cruelty), the Sanfords could speed through the process. And unlike those in no-fault states (Texas and California, among others), South Carolina courts take infidelity into account when making judgments about the division of assets. Mark will be ineligible for alimony. And Jenny could receive a much greater share of their estate than she would have if Mark’s e-mail relationship had never gotten past the Gchat phase.

Explainer thanks Marcia Yablon-Zug of the University of South Carolina School of Law.

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