Adultery

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Adultery (anglicised from Latin adulterium) is a type of extramarital sex. Interpretations of what constitutes adultery vary widely, as do the religious and legal consequences of the acts in question. The term adultery has an Abrahamic origin, though the concept predates Judaism and is found in many other societies. The definition and consequences vary between religions culture benefits and legal jurisdictions, but the concept is similar in Islam, Christianity and Judaism.[1]

Historically, adultery has been considered to be a very serious offense by many cultures, with the act of a man having sexual relations with another man's wife most often incurring very severe punishment for both the wife and her lover, such as the death penalty, mutilation or torture.[2] Such punishments have gradually fallen into disfavor, especially from the 19th century onwards. In most Western countries, adultery is no longer a criminal offense today. Nevertheless, even in jurisdictions where adultery is not a criminal offense, it may still have legal consequences, particularly in divorce cases. For example, where there is fault-based family law, it almost always constitutes grounds for divorce; depending on jurisdiction, it may be a factor to consider in a property settlement, the custody of children, the denial of alimony etc. Moreover, adultery can affect the social status of those involved, and result in social ostracism in some parts of the world.

In countries where adultery is illegal, the punishments range from fines to the death penalty. In the 21st century, criminal laws against adultery have become controversial, with international organizations calling for their abolition, especially in the light of several high profile stoning cases that have occurred in certain countries. The head of the U.N. expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakiran, has stated that: "Adultery must not be classified as a criminal offence at all".[3] A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offence violates women’s human rights".[4]

Some ultra-conservative Islamic societies with sharia law may implement stoning as punishment for adultery.[5] Most countries that criminalize adultery are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines, South Korea, Taiwan, and several US states.

Overview[edit]

The application of the term to the act appears to arise from the idea that "criminal intercourse with a married woman ... tended to adulterate the issue [children] of an innocent husband ... and to expose him to support and provide for another man's [children]".[6] Thus, the "purity" of the children of a marriage is corrupted, and the inheritance is altered. The law often uses the word "adulterate[d]" to describe contamination of food and the like.[7]

Three 1990s studies in the United States, using nationally representative samples, have found that about 10–15% of women and 20–25% of men admitted to having engaged in extramarital sex.[8][9][10] Other studies in the US have higher numbers (see United States below).

Definitions and legal constructs[edit]

In the traditional English common law, adultery was a felony. Although the legal definition of adultery differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.

Adultery involving a married woman and a man other than her husband was considered a very serious crime; in 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man's wife was "the highest invasion of property" and claimed, in regard to the aggrieved husband, that "a man cannot receive a higher provocation".[11]

The Encyclopedia of Diderot & d'Alembert, Vol. 1 (1751), also equated adultery to theft writing that "adultery is, after homicide, the most punishable of all crimes, because it is the most cruel of all thefts, and an outrage capable of inciting murders and the most deplorable excesses." [12]

Legal definitions of adultery vary. For example, New York defines an adulterer as a person who "engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse."[13] North Carolina defines adultery as occurring when any man and woman "lewdly and lasciviously associate, bed, and cohabit together."[14] Minnesota law provides: "when a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery."[15] In the 2003 New Hampshire Supreme Court case Blanchflower v. Blanchflower, it was held that female same-sex sexual relations did not constitute sexual intercourse, based on a 1961 definition from Webster's Third New International Dictionary; and thereby an accused wife in a divorce case was found not guilty of adultery. In 2001, Virginia prosecuted an attorney, John R. Bushey, for adultery, a case that ended in a guilty plea and a $125 fine.[16][17] Adultery is against the governing law of the U.S. military.[18]

In common-law countries, adultery was also known as criminal conversation. This became the name of the civil tort arising from adultery, being based upon compensation for the other spouse's injury.[19] Criminal conversation was usually referred to by lawyers as crim. con., and was abolished in England in 1857, and the Republic of Ireland in 1976. Another tort, alienation of affection, arises when one spouse deserts the other for a third person.[20] This act was also known as desertion, which was often a crime as well.[21] A small number of jurisdictions still allow suits for criminal conversation and/or alienation of affection.[22] Because of its abuse, at least one jurisdiction (Nevada) has abolished the tort of alienation of affection and has made it a misdemeanor crime to file such a lawsuit.

A marriage in which both spouses agree ahead of time to accept sexual relations by either partner with others is sometimes referred to as an open marriage or the Swinging lifestyle. Both are a form of non-monogamy, and the spouses would not view the sexual relations as adultery. However, irrespective of the stated views of the partners, extra-marital relations could still be considered adultery and a crime in some legal jurisdictions.

In Canada, though the written definition in the Divorce Act refers to extramarital relations with someone of the opposite sex, a British Columbia judge used the Civil Marriage Act in a 2005 case to grant a woman a divorce from her husband who had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.

In the United Kingdom, case law restricts the definition of adultery to penetrative sexual intercourse between a man and a woman, no matter the gender of the spouses in the marriage, although infidelity with a person of the same gender can be grounds for a divorce as unreasonable behavior; this situation was discussed at length during debates on the Marriage (Same-Sex Couples) Bill.[23]

In India, adultery is the sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. It is a non-cognizable, non-bailable criminal offence. A police officer cannot arrest a person without a warrant in a case of adultery as adultery is a non-cognizable offence.[24]

Legal issues regarding paternity[edit]

Joan II of Navarre - her paternity and succession rights were disputed her whole life because her mother Margaret of Burgundy was claimed to have committed adultery

Historically, paternity of children born out of adultery has been seen as a major issue. Modern advances such as reliable contraception and paternity testing have changed the situation (in Western countries). Most countries nevertheless have a legal presumption that a woman's husband is the father of her children who were born during that marriage. Although this is often merely a rebuttable presumption, many jurisdictions have laws which restrict the possibility of legal rebuttal (for instance by creating a legal time limit during which paternity may be challenged - such as a certain number of years from the birth of the child).[25] Establishing correct paternity may have major legal implications, for instance in regard to inheritance.

Children born out of adultery suffered, until recently, adverse legal and social consequences. In France, for instance, a law that stated that the inheritance rights of a child born under such circumstances were, on the part of the married parent, half of what they would have been under ordinary circumstances, remained in force until 2001, when France was forced to change it by a ruling of the European Court of Human Rights (ECtHR) (and in 2013 the ECtHR also ruled that the new 2001 regulations must be also applied to children born before 2001).[26]

There has been, in recent years, a trend of legally favoring the right to a relation between the child and its biological father, rather than preserving the appearances of the 'social' family. In 2010, the ECtHR ruled in favor of a German man who had fathered twins with a married woman, granting him right of contact with the twins, despite the fact that the mother and her husband had forbidden him to see the children.[27]

Prevalence[edit]

Durex's Global Sex Survey found that worldwide 22% of people surveyed admitted to have had extramarital sex.[28][29] A 2005 scientific review of international published studies of paternal discrepancy found a range in incidence from 0.8% to 30% (median 3.7%), suggesting that the widely quoted figure of 10% of non-paternal events is an overestimate.[30]

In the United States Alfred Kinsey found in his studies that 50% of males and 26% of females had extramarital sex at least once during their lifetime.[31] Depending on studies, it was estimated that 26–50% of men and 21–38% women,[32] or 22.7% of men and 11.6% of women, had extramarital sex.[10] Other authors say that between 20% and 25% of Americans had sex with someone other than their spouse.[33]

Cultural and religious traditions[edit]

Man and woman undergoing public exposure for adultery in Japan, around 1860

Greco-Roman world[edit]

In the Greco-Roman world there were stringent laws against adultery, but these applied to sexual intercourse with a married woman. In the early Roman Law the jus tori belonged to the husband. It was therefore not a crime against the wife for a husband to have sex with a slave or an unmarried woman.[34]

It is well known that the Roman husband often took advantage of his legal immunity. Thus we are told by the historian Spartianus that Verus, the imperial colleague of Marcus Aurelius, did not hesitate to declare to his reproaching wife: "Uxor enim dignitatis nomen est, non voluptatis." ('Wife' connotes rank, not sexual pleasure, or more literally "Wife is the name of dignity, not bliss") (Verus, V).

Later in Roman history, as William E.H. Lecky has shown, the idea that the husband owed a fidelity similar to that demanded of the wife must have gained ground, at least in theory. Lecky gathers from the legal maxim of Ulpian: "It seems most unfair for a man to require from a wife the chastity he does not himself practice".[35]

The lending of wives practiced among some people was, as Plutarch tells us, encouraged also by Lycurgus, though from a motive other than that which actuated the practice (Plutarch, Lycurgus, XXIX). The recognized license of the Greek husband may be seen in the following passage of the Oration against Neaera, the author of which is uncertain, though it has been attributed to Demosthenes:

We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children and to be our faithful housekeepers. Yet, because of the wrong done to the husband only, the Athenian lawgiver Solon allowed any man to kill an adulterer whom he had taken in the act. (Plutarch, Solon)

The Roman Lex Julia, Lex Iulia de Adulteriis Coercendis (17 BC), punished adultery with banishment [36] The two guilty parties were sent to different islands ("dummodo in diversas insulas relegentur"), and part of their property was confiscated.[36] Fathers were permitted to kill daughters and their partners in adultery. Husbands could kill the partners under certain circumstances and were required to divorce adulterous wives.

Abrahamic religions[edit]

Biblical sources[edit]

'Thou shalt not commit adultery' (Nathan confronts David); bronze bas-relief on the door of the La Madeleine, Paris, Paris.

The Hebrew Bible (the Tanakh or Old Testament) prohibits adultery in the seventh of the Ten Commandments (Exodus 20:12) (sixth Commandments in Christian enumeration and in verse Exodus 20:14). Adultery in traditional Judaism applies unequally to both parties.

For instance, the Old Testament book of Leviticus prescribes capital punishment for adultery between a man and married woman, though not for adultery between a woman and a married man.

And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death. (Lev. 20:10).

Furthermore, Deuteronomic code prescribes stoning not only for female extramarital sex, but also for female premarital sex in the case where the woman lies about her virginity.

If any man take a wife, and go in unto her, … and say, / I took this woman, and when I came to her, I found her not a maid. / … But if this thing be true, and the tokens of virginity be not found for the damsel: / Then they shall bring out the damsel to the door of her father's house, and the men of her city shall stone her with stones that she die. (Deut. 22:13-21).

It also prescribes the same for engaged women who lie with another man, under the premise that if she allows the action without protesting, this indicates willingness.

If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her; / Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city. (Deut. 22:23-24).

Book of Mormon sources[edit]

The Book of Mormon also prohibits adultery. For instance, Abinadi cites the Ten Commandments when he accuses Noah's priests of sexual immorality.[37] When Jesus Christ visits the Americas he reinforces the law and teaches them the higher law (also found in the New Testament):

Behold, it is written by them of old time, that thou shalt not commit adultery; but I say unto you, that whosoever looketh on a woman, to lust after her, hath committed adultery already in his heart.[38]

Book of Mormon prophets and civil leaders often list adultery as an illegal activity along with murder, robbing, and stealing.[39]

Christianity[edit]

Adultery is considered by Christians to be immoral and a sin, based primarily on passages like 1 Corinthians 6:9–10. Although 1 Corinthians 6:11 does say that "and that is what some of you were. But you were washed", it still acknowledges adultery to be immoral and a sin. The sixth commandment (seventh in some traditions) ("Thou shalt not commit adultery") is also a basis, but see also Biblical law in Christianity.

Jesus taught that indulgence in adulterous thoughts could be just as harmful to the soul as actual adultery, and it is clear that both carry the same weight of guilt:

But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. (Matthew 5:28)

and He also says:

But I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become an adulteress, and anyone who marries the divorced woman commits adultery.(Matthew 5:32)

However, Christ also showed forbearance to those committing adultery, although still commanding repentance, perhaps most famously in the story related in the Eighth Chapter of John:

Then the scribes and Pharisees brought to Him a woman caught in adultery. And when they had set her in the midst, they said to Him, “Teacher, this woman was caught in adultery, in the very act. Now Moses, in the law, commanded us that such should be stoned. But what do You say?” This they said, testing Him, that they might have something of which to accuse Him. But Jesus stooped down and wrote on the ground with His finger, as though He did not hear.

So when they continued asking Him, He raised Himself up and said to them, “He who is without sin among you, let him throw a stone at her first.” And again He stooped down and wrote on the ground. Then those who heard it, being convicted by their conscience, went out one by one, beginning with the oldest even to the last. And Jesus was left alone, and the woman standing in the midst. When Jesus had raised Himself up and saw no one but the woman, He said to her, “Woman, where are those accusers of yours? Has no one condemned you?”

She said, “No one, Lord.”

And Jesus said to her, “Neither do I condemn you; go and sin no more.” ~John 8: 3-11

Some churches have interpreted adultery to include all sexual relationships outside of marriage, regardless of the marital status of the participants.[40]

Judaism[edit]

Adultery in traditional Judaism applies to both parties, but depends on the marital status of the woman (Lev. 20:10). Though the Torah prescribes the death penalty for adultery, the legal procedural requirements were very exacting and required the testimony of two eye-witnesses of good character for conviction. The defendant also must have been warned immediately before performing the act.[41] A death sentence could be issued only during the period when the Holy Temple stood, and only so long as the Supreme Torah Court convened in its chamber within the Temple complex.[42] Today, therefore, no death penalty applies.[43] The death penalty for adultery was strangulation,[44] except in the case of a woman who was the daughter of a Kohain (Aaronic priestly caste), which was specifically mentioned by Scripture by the death penalty of burning (pouring molten lead down the throat).[45] Ipso facto, there never was mentioned in Pharisaic or Rabbinic Judaism sources a punishment of stoning for adulterers as mentioned in John 8.

At the civil level, however, Jewish law (halakha) forbids a man to continue living with an adulterous wife, and he is obliged to divorce her. Also, an adulteress is not permitted to marry the adulterer, but, to avoid any doubt as to her status as being free to marry another or that of her children, many authorities say he must give her a divorce as if they were married.[46]

According to Judaism, the Seven laws of Noah apply to all of humankind; these laws prohibit adultery with another man's wife.[47]

Islam[edit]

Zina (زنا) is an Arabic term for illegal intercourse; premarital or extramarital. Various conditions and punishments have been attributed to adultery.

Under Muslim law, adultery in general is sexual intercourse by a person (whether man or woman) with someone to whom they are not married. Adultery is a violation of the marital contract and one of the major sins condemned by Allah in the Qur'an:

Qur'anic verses prohibiting adultery include:

"Do not go near to adultery. Surely it is a shameful deed and evil, opening roads (to other evils)."[Quran 17:32]
"Say, 'Verily, my Lord has prohibited the shameful deeds, be it open or secret, sins and trespasses against the truth and reason."'[Quran 7:33]

Punishments are reserved to the legal authorities and false accusations are to be punished severely.[48] It has been said that these legal procedural requirements were instituted to protect women from slander and false accusations: i.e. four witnesses of good character are required for conviction, who were present at that time and saw the deed taking place; and if they saw it they were not of good moral character, as they were looking at naked adults; thus no one can get convicted of adultery unless both of the accused also agree and give their confession under oath four times.[49]

The punishment prescribed by the Qur'an is flogging 100 times in public for those found guilty. According to the prophet Muhammad, an unmarried person who commits adultery or fornication is punished by flogging 100 times; a married person, however, may receive the heavier punishment of stoning to death if convicted of adultery.[50] A survey conducted by the Pew Research Center found support for stoning as a punishment for adultery mostly in Arab countries, such as in Egypt (82% of respondents in favor of the punishment) and Jordan (70% in favor), as well as Pakistan (82% favor), whereas Nigeria (56% in favor) and in Indonesia (42% in favor) opinion is more divided, perhaps due to diverging traditions and differing interpretations of Sharia.[51]

Other historical practices[edit]

After being accused of adultery Cunigunde of Luxembourg proved her innocence by walking over red-hot ploughshares.

In Native American cultures, severe penalties could be imposed on an adulterous wife by her husband. In many instances she was made to endure a bodily mutilation which would, in the mind of the aggrieved husband, prevent her from ever being a temptation to other men again.[52][53] Among the Aztecs, wives caught in adultery were occasionally impaled, although the more usual punishment was to be stoned to death.[54]

The Laws of Manu of ancient India, for example, said: "though destitute of virtue or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly worshiped as a god by a faithful wife"; on the other, hand, "if a wife, proud of the greatness of her relatives or [her own] excellence, violates the duty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many."[55]

In England and its successor states, it has been high treason to engage in adultery with the King's wife, his eldest son's wife and his eldest unmarried daughter. The jurist Sir William Blackstone writes that "the plain intention of this law is to guard the Blood Royal from any suspicion of bastardy, whereby the succession to the Crown might be rendered dubious." Adultery was a serious issue when it came to succession to the crown. Philip IV of France had all three of his daughters-in-law imprisoned, two (Margaret of Burgundy and Blanche of Burgundy) on the grounds of adultery and the third (Joan of Burgundy) for being aware of their adulterous behaviour. The two brothers accused of being lovers of the king's daughters-in-law were executed immediately after being arrested. The wife of Philip IV's eldest son bore a daughter, the future Joan II of Navarre, whose paternity and succession rights were disputed all her life.[56]

Consequences[edit]

Law[edit]

Africa[edit]

Adultery is criminalized in many African countries, often with harsh penalties, especially in those countries that are Muslim majority. For instance, stoning sentences have been given in Sudan [57] and Somalia.[58]

Asia[edit]

In some East Asian countries or regions, including North Korea, South Korea and Taiwan,[59] adultery continues to be a crime. In the Philippines, adultery (defined as consensual sexual intercourse between a married woman and a man who is not her husband) and a related act of concubinage (a man cohabiting with a woman who is not his wife), are considered crimes under the Revised Penal Code of the Philippines. Adultery is not a crime in mainland China, but constitutes grounds for divorce.[60]

In Pakistan, adultery is a crime under the Hudood Ordinance. The Ordinance sets a maximum penalty of death, although only imprisonment and corporal punishment have ever actually been imposed.[citation needed] The Ordinance has been particularly controversial because it requires a woman making an accusation of rape to provide extremely strong evidence to avoid being charged with adultery herself. A conviction for rape is only possible with evidence from no fewer than four witnesses. In recent years high-profile rape cases in Pakistan have given the Ordinance more exposure than similar laws in other countries.[61] Similar laws exist in some other Muslim countries, such as Saudi Arabia.

In Indian law, adultery is defined as sex between a man and a woman without the consent of the woman's husband.[62] The man is prosecutable and can be sentenced for up to five years (even if he himself was unmarried) whereas the married woman cannot be jailed.[63] Men have called the law gender discrimination in that women cannot be prosecuted for adultery[64] and the National Commission of Women has criticized the British era law of being anti-feminist as it treats women as the property of their husbands and has consequentially recommended deletion of the law or reducing it to a civil offense. The Government is yet to act.[65] Extramarital sex without the consent of one's partner can be a valid grounds for monetary penalty on government employees, as ruled by the Central Administrative Tribunal.[66]

In Southwest Asia, adultery has attracted severe sanctions, including death penalty. In some places, such as Saudi Arabia, the method of punishment for adultery is stoning to death. Proving adultery under Muslim law can be a very difficult task as it requires the accuser to produce four eye witnesses to the act of sexual intercourse, each of whom should have a good reputation for truthfulness and honesty. The criminal standards do not apply in the application of social and family consequences of adultery, where the standards of proof are not as exacting.[citation needed] Sandra Mackey, author of The Saudis: Inside the Desert Kingdom, stated in 1987 that in Saudi Arabia, "unlike the tribal rights of a father to put to death a daughter who has violated her chastity, death sentences under Koranic law [for adultery] are extremely rare."[67]

Europe[edit]

Adultery is not a crime in European countries. Until quite recently however, several Western countries had anti-adultery laws on their books. Among the last European countries to decriminalize adultery were Italy (1969), Portugal (1974), France (1975), Spain (1981), Greece (1983), Belgium (1987) and Austria (1997).[68][69][70] Before the 20th century, adultery was often punished harshly. In Scandinavia, in the 17th century, adultery and bigamy were subject to the death penalty, although few people were actually executed.[71]

In most Communist countries adultery was not a criminal offense, although there were exceptions, most notably Romania, where adultery remained a crime until 2006.[72][73]

In Turkey adultery was decriminalized in 1996/1998 because the law was deemed discriminatory as it differentiated between women and men. In 2004, there were new discussions about re-criminalizing adultery, this time through a gender-neutral offense. The plans were dropped, and it has been suggested that the objections from the European Union played a role.[70][74][75]

The European Court of Human Rights (ECtHR) has had the opportunity to rule in recent years on several cases involving the legitimacy of firing a person from their job due to adultery. These cases dealt with people working for religious organizations and raised the question of the balancing of the right of a person to respect for their private life (recognized in the EU) and the right of religious communities to be protected against undue interference by the State (recognized also in the EU). These situations must be analyzed with regard to their specific circumstances, in each case. The ECtHR had ruled both in favor of the religious organization (in the case of Obst) and in favor of the fired person (in the case of Schüth).[76]

United States[edit]

In the United States, laws vary from state to state. In 2012, adultery was a criminal offense in 23 states.[77] In 2013, Colorado abolished its adultery law.[78] In those states where adultery is still on the statute books (although rarely prosecuted), penalties vary from life sentence (Michigan)[79] to a $10 fine (Maryland)[80] to a Class B misdemeanor (New York)[81] to a Class I felony (Wisconsin).[82] In the state of South Carolina, the criminal fine for adultery is a fine no greater than $500 and/or imprisonment for no more than one year [South Carolina code 16-15-60], yet the divorce laws codified at South Carolina Code Section 20-3-60(A) deny alimony to the adulterous spouse, which in some cases can cost the adulterous spouse millions of dollars in future income.[83][84] Other states where adultery is illegal include Massachusetts, Idaho, Oklahoma.[77] Massachusetts, Idaho, Michigan, Oklahoma and Wisconsin are the only states to consider adultery a felony. In the other states it is a misdemeanor. In 2010, West Virginia repealed its adultery law.[85]

This map shows U.S. adultery laws in 1996. This map is part of a map series created for http://middlingamerica.blogspot.com.
This map shows adultery statutes in the United States in 1996 and who they penalized. This map is part of a map series created for http://middlingamerica.blogspot.com.
This map shows U.S. adultery laws in 1996 and when these laws were enacted. This map is part of a map series created for http://middlingamerica.blogspot.com.

The last conviction for adultery in Massachusetts occurred in 1983. In that case it was held that the statute was constitutional. It was held that "no fundamental personal privacy right implicit in the concept of ordered liberty guaranteed by the United States Constitution bars the criminal prosecution of such persons [adulterers]."[86] Whether a conviction under this statue would be possible today (especially after Lawrence v. Texas (2003)) is not known.

In Utah adultery is a class B misdemeanor. The adultery law only applies to the married party (the law states that "A married person commits adultery when he voluntarily has sexual intercourse with a person other than his spouse.")[87] However, Utah also has a fornication law that applies to any unmarried person (also a class B misdemeanor).[88]

In Florida "Living in open adultery" (Art 798.01) as well as "Lewd and lascivious behavior"(Art 798.02) which includes, among others, a man and a woman who "not being married to each other, lewdly and lasciviously associate and cohabit together" are both misdemeanors of the second degree.[89]

South Carolina's adultery law came into spotlight in 2009, when then governor Mark Sanford admitted to his extramarital affair. He was not prosecuted for it; it is not clear whether South Carolina could prosecute a crime that occurred in another jurisdiction (Argentina in this case); furthermore, under South Carolina law adultery involves either "the living together and carnal intercourse with each other" or, if those involved do not live together "habitual carnal intercourse with each other" which is more difficult to prove.[90]

In Alabama "A person commits adultery when he engages in sexual intercourse with another person who is not his spouse and lives in cohabitation with that other person when he or that other person is married." Adultery is a Class B misdemeanor.[91]

Up until the mid 20th century most US states (especially Southern and Northeastern states) had laws against fornication, adultery or cohabitation. These laws have gradually been abolished or struck down by courts as unconstitutional.[92][93][94]

Pennsylvania abolished its 270-year-old laws against fornication and adultery in a sweeping recodification of its criminal laws in 1973.[95]

In the U.S. Military, adultery is a potential court-martial offense.[18] The enforceability of adultery laws in the United States is unclear following Supreme Court decisions since 1965 relating to privacy and sexual intimacy of consenting adults.[96] However, occasional prosecutions do occur.[97]

Criticism of adultery laws[edit]

Political arguments[edit]

Laws against adultery have been named as invasive and incompatible with principles of limited government. Much of the criticism comes from libertarianism, the consensus among whose adherents is that government must not intrude into daily personal lives and that such disputes are to be settled privately rather than prosecuted and penalized by public entities.

Opponents of adultery laws regard them as painfully archaic, believing they represent sanctions reminiscent of nineteenth-century novels. They further object to the legislation of morality, especially a morality so steeped in religious doctrine. Support for the preservation of the adultery laws comes from religious groups and from political parties who feel quite independent of morality, that the government has reason to concern itself with the consensual sexual activity of its citizens … The crucial question is: when, if ever, is the government justified to interfere in consensual bedroom affairs?[98]

There is a history of adultery laws being abused. In Somerset, England, a somewhat common practice was for husbands to encourage their wives to seduce another man, who they would then sue or blackmail, under laws prohibiting men from having sex with women married to other men.[99]

Historical context[edit]

Historically, in most cultures, laws against adultery were enacted only to prevent women—and not men—from having sexual relations with anyone other than their spouses, whose property they were deemed. Among many cultures the penalty was—and to this day still is, as noted belowcapital punishment. At the same time, men were free to maintain sexual relations with any women (polygyny) provided that the women didn't already have husbands or "owners." Indeed, בעל (ba`al), Hebrew for husband, used throughout the Bible, is synonymous with owner. These laws were enacted in fear of cuckoldry and thus sexual jealousy. Many indigenous customs, such as female genital mutilation[100] and even menstrual taboos,[101] have been theorized to have originated as preventive measures against cuckolding. This arrangement has been deplored by many modern intellectuals.

Laws against adultery [were] based upon the idea that woman is a chattel, so that to make love to a married woman is to deprive the husband of her services. It is the frankest and most crass statement of a slave-situation. To us, every woman … has … an absolute right to travel in her own orbit. There is no reason why she should not be the ideal hausfrau, if that chance to be her will. But society has no right to insist upon that standard. It was, for practical reasons, almost necessary to set up such taboos in small communities, savage tribes, where the wife was nothing but a general servant, where the safety of the people depended upon a high birth-rate. But to-day woman is economically independent, becomes more so every year. The result is that she instantly asserts her right to have as many or as few men or babies as she wants or can get; and she defies the world to interfere with her. More power to her![102]

Violence against women[edit]

Opponents of adultery laws argue that these laws maintain social norms which justify violence, discrimination and oppression of women; in the form of state sanctioned forms of violence such as stoning, flogging or hanging for adultery; or in the form of individual acts of violence committed against women by husbands or relatives, such as honor killings, crimes of passion, and beatings.[103][104] UN Women has called for the decriminalization of adultery.[105] A Joint Statement by the United Nations Working Group on discrimination against women in law and in practice in 2012 stated:[106]

"The United Nations Working Group on discrimination against women in law and in practice is deeply concerned at the criminalization and penalization of adultery whose enforcement leads to discrimination and violence against women."

Other consequences[edit]

General[edit]

For various reasons, most couples who marry do so with the expectation of fidelity. Adultery is often seen as a breach of trust and of the commitment that had been made during the act of marriage.[107] Adultery can be emotionally traumatic for both spouses and often results in divorce.[108] However, in a new work, The New Rules by Dr Catherine Hakim, a French sociologist and author, refers to the UK arguing that a "sour and rigid English view" of infidelity as opposed to the 'wonderful French way' of male infidelity is condemning millions of people to live frustrated "celibate" lives with their spouses. She argues that there is such a thing as a "successful affair" in which both parties are happier but no one gets hurt: "Sex is no more a moral issue than eating a good meal," she writes. "The fact that we eat most meals at home with spouses and partners does not preclude eating out in restaurants to sample different cuisines and ambiences, with friends or colleagues."[109] French author Dr Hakim points out in the 'New Rules' that Frenchmen are 'amazing' lovers compared to everyone else which may she says be a result of their attitudes to a bit on the side', however, in France infidelity tends to be practiced mainly by French women who look abroad, particularly towards England taking English men as their lovers.

Adultery may lead to ostracization from certain religious or social groups.[110]

Adultery can also lead to feelings of guilt and jealousy in the person with whom the affair is being committed. In some cases, this "third person" may encourage divorce (either openly or subtly).[111] If the cheating spouse has hinted at divorce in order to continue the affair, the third person may feel deceived if that does not happen.[112][113] They may simply withdraw with ongoing feelings of guilt, carry on an obsession with their lover, may choose to reveal the affair, or in rare cases commit violence or other crimes.[114]

Since adultery can lead to divorce, it may have long-term consequences for children in the family. Children of divorcees are twice as likely to have problems as adults with mental illness, substance abuse, and failed relationships, though heritable factors, such as a tendency toward anxiety and depression, are likely the root cause of both the infidelity of the parent and the later struggles of the child. While there is correlation, there is no evidence that divorces causes children to have struggles in later life.[115]

If adultery leads to divorce, it also carries higher financial burdens.[116] For example, living expenses and taxes are generally cheaper for married couples than for divorced couples.[117] Legal fees can add up into the tens of thousands of dollars.[116] Divorced spouses may not qualify for benefits such as health insurance, which must then be paid out-of-pocket.[118]

Sexually transmitted infections[edit]

Like any sexual contact, adultery may result in sexually-transmitted diseases (STD). Since most married couples do not routinely use barrier contraceptives,[119] STDs can easily be transmitted from one spouse to another in this way. This can be a public health issue in regions of the world where STDs are common, but addressing this issue is very difficult due to legal and social barriers - to openly talk about this situation would mean to acknowledge that adultery (often) takes place, something that is taboo in certain cultures, especially those strongly influenced by religion. In addition, dealing with the issue of barrier contraception in marriage in cultures where women have very few rights is difficult: the power of women to negotiate safer sex (or sex in general) with their husbands is often limited.[120][121][122] The World Health Organisation (WHO) found that women in violent relations were at increased risk of HIV/AIDS, because they found it very difficult to negotiate safe sex with their partners, or to ask medical advice if they though to have been infected.[123]

Violence[edit]

Inca woman and man to be stoned for adultery, by Huamán Poma

Historically, female adultery often resulted in extreme violence, including murder (of the woman, her lover, or both, committed by her husband). Today domestic violence is outlawed in the Western World, but this is not the case in many developing countries.

Honor killings[edit]

Honor killings are often connected to accusations of adultery. Honor killings continue to be legal in parts of the world.

According to the report of the Special Rapporteur submitted to the 58th session of the United Nations Commission on Human Rights (2002) concerning cultural practices in the family that reflect violence against women (E/CN.4/2002/83):

The Special Rapporteur indicated that there had been contradictory decisions with regard to the honour defense in Brazil, and that legislative provisions allowing for partial or complete defense in that context could be found in the penal codes of Argentina, Ecuador, Egypt, Guatemala, Iran, Israel, Jordan, Peru, Syria, Venezuela and the Palestinian National Authority.[124]

Part of article 340 of the Penal Code of Jordan states that "he who discovers his wife or one of his female relatives committing adultery and kills, wounds, or injures one of them, is exempted from any penalty."[125]

Until 2009, in Syria, it was legal for a husband to kill or injure his wife or his female relatives caught in flagrante delicto committing adultery or other illegitimate sexual acts. The law has changed to allow the perpetrator to only "benefit from the attenuating circumstances, provided that he serves a prison term of no less than two years in the case of killing."[126] Other articles also provide for reduced sentences. Article 192 states that a judge may opt for reduced punishments (such as short-term imprisonment) if the killing was done with an honorable intent. Article 242 says that a judge may reduce a sentence for murders that were done in rage and caused by an illegal act committed by the victim.[127]

According to the UN in 2002:

"The report of the Special Rapporteur ... concerning cultural practices in the family that are violent towards women (E/CN.4/2002/83), indicated that honour killings had been reported in Egypt, Jordan, Lebanon, Morocco, Pakistan, the Syrian Arab Republic, Turkey, Yemen, and other Mediterranean and Persian Gulf countries, and that they had also taken place in western countries such as France, Germany and the United Kingdom, within migrant communities."[124][128]

Stoning[edit]

Stoning, or lapidation, refers to a form of capital punishment whereby an organized group throws stones at an individual until the person dies, or (in ancient Judaism) the condemned person is pushed from a platform set high enough above a stone floor that the fall would probably result in instantaneous death.[129]

Stoning continues to be practiced today, in parts of the world. Recently, several people have been sentenced to death by stoning after being accused of adultery in Iran, Somalia, Afghanistan, Sudan, Mali, and Pakistan by tribal courts.[130]

In fiction[edit]

Madame Bovary 1857 (hi-res).jpg

The theme of adultery has been used in many literary works, and has served as a theme for some notable books, such as Anna Karenina, Madame Bovary, Lady Chatterley's Lover, The Scarlet Letter. Adultery has also been the theme of many movies.

See also[edit]

References[edit]

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  130. ^ Examples include:

Further reading[edit]