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F.S. 798.01 on Google Scholar

F.S. 798.01 on Casetext

Amendments to 798.01


The 2022 Florida Statutes

Title XLVI
CRIMES
Chapter 798
ADULTERY; LEWD AND LASCIVIOUS BEHAVIOR
View Entire Chapter
F.S. 798.01 Florida Statutes and Case Law
798.01 Living in open adultery.Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.
History.s. 1, ch. 1986, 1874; RS 2595; GS 3518; RGS 5406; CGL 7549; s. 772, ch. 71-136.

Statutes updated from Official Statutes on: August 29, 2022
F.S. 798.01 on Google Scholar

F.S. 798.01 on Casetext

Amendments to 798.01


Arrestable Offenses / Crimes under Fla. Stat. 798.01
Level: Degree
Misdemeanor/Felony: First/Second/Third

798.01 - SEX OFFENSE - ADULTERY - M: S


Civil Citations / Citable Offenses under S798.01
R or S next to points is Mandatory Revocation or Suspension

Current data shows no reason a civil citation or a suspension or revocation of license should have been issued under Florida Statute 798.01.


Annotations, Discussions, Cases:

  1. McLaughlin v. Florida

    379 U.S. 184 (1964)   Cited 734 times   2 Legal Analyses
    Section 798.02 proscribes two offenses: (1) open and gross lewdness and lascivious behavior by either a man or a woman; (2) lewd and lascivious association and cohabitation by a man and woman. The latter offense is identical to that proscribed by § 798.01, except that § 798.01 contains the additional requirement that one of the participants be married to a third party. Conviction under either section requires a showing that the parties lived together and maintained sexual relations over a period of time as in the conjugal relation between husband and wife. Braswell v. State, 88 Fla. 183, 101 So. 232 (1924), Lockhart v. State, 79 Fla. 824, 85 So. 153 (1920) (both cases involving what is now § 798.01); Wildman v. State, 157 Fla. 334, 25 So.2d 808 (1946), Penton v. State, 42 Fla. 560, 28 So. 774 (1900) (cases involving, respectively, § 798.02 and what is now that statute).
    PAGE 187
  2. Purvis v. State

    377 So. 2d 674 (Fla. 1979)   Cited 12 times
    The state argues that the distinction made by the statute is offset by section 798.01, Florida Statutes (1977), so that there is actually no differential treatment or classification established. Section 798.01 prohibits living in open adultery. It might also be suggested that married women are subject to prosecution under section 796.07(1)(a), Florida Statutes (1977), which in part defines prostitution as "licentious sexual intercourse without hire." The elements of these offenses, however, are different from fornication. A single act of illicit sex is sufficient to support a charge of fornication, but is insufficient to support prosecution for living in open adultery. Braswell v. State, 88 Fla. 183, 101 So. 232 (1924); Lockhart v. State, 79 Fla. 824, 85 So. 153 (1920). The effect of the fornication and adultery statutes taken together is that a married woman and her sexual partner cannot be punished for isolated instances of illicit sexual activity. And because the statute prohibiting prostitution without hire requires a mental element of licentiousness, Tatzel v. State, 356 So.2d 787 (Fla. 1978), this crime also differs from fornication. Therefore, the…
    PAGE 676
  3. Matter of Rivera

    5 B.R. 313 (Bankr. M.D. Fla. 1980)   Cited 20 times
    In order for the Debtor to be able to establish himself as a "head of a family" he must be able to establish a family relationship based on cohabitation with an unmarried woman. Such a relationship, which might be chic and acceptable in some cases, is still a violation of Florida Statutes § 798.01 (PERSONS LIVING IN OPEN ADULTERY), Chap. 798.02 (LEWD AND LASCIVIOUS BEHAVIOR), or 798.03 (FORNICATION). Since each of those three statutes involve commission of a crime, it is quite obvious that the status of head of a family cannot be obtained based on such a relationship which is against the public policy of this State.
    PAGE 316
  4. Miller v. State

    520 So. 2d 80 (Fla. Dist. Ct. App. 1988)   Cited 1 times
    Section 798.01 prohibits living "in an open state of adultery." Section 798.02 prohibits a man and woman not married to each other from "lewdly and lasciviously" associating and cohabiting together.
  5. See, e.g., Ariz.Rev.Stat. § 13A-1408-1409; Fla. Stat. § 798.01; GA. Code Ann. § 16-6-19; Kan. Stat. Ann. § 21-3507; Mich. Comp. Laws § 750.30; N.C. Gen.Stat. § 14-184; R.I. Gen. Laws § 11-6-2; S.C. Code Ann. §§ 16-15-60, 16-15-70; Wis. Stat. Ann. § 944.16.
    PAGE 642
  6. Succession of Thompson

    367 So. 2d 796 (La. 1979)   Cited 15 times
    Alabama Crim. Code § 13A-13-2 (adultery); Alaska Statutes § 11.40.040 (cohabiting in a state of adultery or fornication) and § 11.40.010 (adultery); Arizona R.S. § 13-1408 (adultery); Colorado R.S. § 18-6-501 (adultery); GSA Connecticut § 53a-81 (adultery); District of Columbia Code § 22-1002; Florida S.A. Title 44, § 798.01 (living in open adultery), 798.02 (lewd and lascivious behavior) and 798.03 (fornication); Georgia Code Ann. § 26-2009 (adultery) and 26-2010 (fornication); Idaho Code §§ 18-6601 (adultery), 18-6603 (fornication) and 18-6604 (lewd cohabitation); Illinois Ann. Stat. 38 § 11-7 (adultery) and 38 § 11-8 (fornication); Kansas S.A. § 21-3507 (adultery); Ann. Code of Maryland, Art. 27 § 4 (adultery); Massachusetts G.L.A., chapter 272 § 14 (adultery), § 16 (lascivious cohabitation) and § 18 (fornication); Michigan S.A. § 28.567 [M.C.L.A. § 750.335] (lewd and lascivious cohabitation); Mississippi Code Ann. Title 97 § 29-1 (adultery and fornication — unlawful cohabitation); Missouri R.S. § 563.150 (adultery and gross lewdness); R.S. Nebraska 1977 Supp. § 28-704 (adultery); New Hampshire R.S. chapter 645.3 (adultery); New Jersey S.A. chapter 2A:88-1 (adultery…
    PAGE 800
  7. Moore v. State

    339 So. 2d 228 (Fla. Dist. Ct. App. 1976)   Cited 8 times
    Section 798.01, F.S. 1975.
    PAGE 231
  8. United States v. Moreira-Bravo

    No. 21-3355 (8th Cir. Dec. 27, 2022)
    A person can also be charged with a crime for, inter alia, incest, see, e.g., Ind. Code. § 35-46-1-3 (2022), bestiality, see, e.g., Cal. Penal Code § 286.5 (2022), adultery, see, e.g., Fla. Stat. § 798.01 (2022), cohabitation, see, e.g., Mich. Comp. Laws § 750.335 (2022), and fornication, see, e.g., Miss. Code Ann. § 97-29-1 (2022), and could have been charged for sodomy when Congress enacted the current version of § 2423(a) in 1998, see, e.g., Tex. Penal Code Ann. § 21.06 (1998). None of these crimes rely on the participants' age for their criminality.
    PAGE 12
  9. Lee v. Lee

    544 So. 2d 1083 (Fla. Dist. Ct. App. 1989)   Cited 11 times
    467 So.2d at 468. We concur in these observations, although we are aware that apparently a majority of jurisdictions in this country, including the appellate decisions in this state, have rejected this argument and disapproved the notion of outright termination of support alimony upon establishment of a so-called "de facto marriage." See generally, Keith and Nelson, Cohabitation: New Views on a New Lifestyle, 6 Fla.St.L.Rev. 1393 (1978); Langbein, Post-Dissolution Cohabitation: "The Best of Both Worlds", 57 Fla. Bar J. 656 (Nov. 1983). Yet, where the evidence convinces a trial court that the parties are cohabiting in a manner tantamount to actual marriage, lacking only solemnization by license and ceremony, no doubt such persons are doing so in a manner that for all intents and purposes would place their conduct in violation of section 798.01, Florida Statutes (1987). That section makes it a criminal offense for couples to live "in an open state of adultery" and has been in the statutes of this state for well over a century. For a court of equity to countenance such a meretricious relationship and continue to enforce an award of equitable benefits to a party to such…
    PAGE 1089
  10. Simkins v. Simkins

    219 So. 2d 724 (Fla. Dist. Ct. App. 1969)   Cited 16 times
    Under § 798.01 Fla. Stat., F.S.A., living in an open state of adultery is a crime for which the maximum penalty provided is imprisonment in the state prison for two years. While it could be argued that isolated acts of adultery, as charged in a divorce pleading, if proved, would not constitute a crime under the statute, and therefore are not a basis for refusal to answer on the ground of self-incrimination, the court did not proceed on that ground in Stockham v. Stockham, Fla. 1964, 168 So.2d 320, 4 A.L.R.3d 539. In that case and in the present suit the courts appear to have proceeded on the theory that occasion appropriate for invoking the privilege against self-incrimination was present, and were concerned only with the effect which the party's insistence on his privilege against self-incrimination should have on his right to further litigate his cause.
    PAGE 725