Bookmaking is a crime. It is a crime because the government has an interest in maintaining traditional notions of social values, and it is a crime because the gains gotten from betting are seldom reported as income and thus not taxed. So, there are two issues: First, the government has an interest in promoting social values, and secondly, the government likes to get paid.

This law is still enforced as it is illegal (in FL) for a person to accept, facilitate, or place bets unless they are: (a) Native American, (b) a registered parimutual, (c) the government conducting a lottery, (d) all of the above.

Promoting Social Values

Another crime (in FL) is recognized by Florida Statutes 798.01, and798.02. Together, these are known as Florida’s Adultery laws. In sum, Florida makes it a crime, to engage in what are considered adulterous acts. This can be seen as the law’s recognition and promotion of healthy family lifestyles, in accordance with traditional social mores. These laws promote and protect the values and sanctity of things such as marriage and the role of family.

But, as technology is making it easier for people to keep in touch, technology is also making it easier for people to meet. For example, take the Ashley Madison Agency. The Ashley Madison Agency is a website that promotes marital affairs. “Life is short, Have an Affair” says the homepage, which also states that it has over 4.5 million members. In fact, the website guarantees that it will “change your life” with the “Ashley Madison Affair Guarantee.”

As a lawyer, I see several issues with this website. Issues

Criminal Solicitation AKA Advertising

Criminal Solicitation involves asking, enticing, inducing, or counseling another to commit a crime. Certainly, Ashley Madison’s advertisements are simultaneously asking, enticing, and even possibly counseling another to commit a crime, namely adultery. Thus, it can be seen that the Ashley Madison Agency might be vulnerable for criminal solicitation in states that recognize adultery as a crime. At common law, in order to be guilty, the solicitation must actually reach the other person. Therefore, all television advertisements seen, radio commercials heard, and emails received, would be considered individual counts for criminal solicitation. But, more shocking is that under states laws which have adopted the Model Penal Code, the solicitation does not have to reach the other person. This may actually enable Ashley Madison to consolidate any possible liability.

Furthermore, it is interesting to query the possible liability of television shows/radio shows/websites that have aided in the advertising of this agency (I.e., Dr. Phil, Good Morning America, etc.)

The Agreement AKA Criminal Conspiracy and Attempted Adultery

Conspiracy involves an agreement between two or more persons, an intent to enter into the agreement, and an intent to achieve the objective of the agreement. Thus, when members, either after they are solicited, sign up, or sign up for the adultery service on their own accord, they are entering into an agreement with the intent to achieve the objective of the agreement. Therefore, it would appear that any active accounts in the Ashley Madison database are considered illegal via criminal conspiracy. Readers should note that the agreement does not have to be express as criminal conspiracy recognizes implied agreements too.

The Overall Scheme AKA Aiding and Abetting in Criminal Activity

The above demonstrates the propensity for the Ashley Madison Agency to aid and abet criminal behavior. Thus, the agency might be liable as a coconspirator/codefendant.

Contractual issues: VOID AS AGAINST PUBLIC POLICY, CONTRACT TO ENTER INTO AN ILLEGAL TRANSACTION

Parties seeking to rescind their contracts might be able to challenge their membership agreements by arguing that the contract/membership agreement is void as against public policy, or that it is a contract to enter into an illegal transaction and thus void. Ultimately this means that over 4.5 million membership agreements are simply void.

Pay me… Please.

While I do recognize that Florida’s adultery law is an “old law on the books” and that the Government may not care because we will assume the revenues are reported, and taxes are paid, it is interesting to consider that government acquiescence might lead some to believe that the government is an inadvertent promoter of illegal conduct.

Do you have a domestic dispute? A criminal problem? Call Friedman legal today for a free consultation at 888-411-1677