Adultery

This article is about the act of adultery or extramarital sex. For the music album, see Adultery (album). For a broad overview, see Religion and sexuality.

Le supplice des adultères by Jules Arsene Garnier

Adultery (also called philandery) is a form of extramarital sex. It is sexual infidelity to one's spouse. It originally referred only to sex between a woman who was married and a person other than her spouse.

Adultery is illegal in some countries. The interaction between laws on adultery with those on rape has and does pose particular problems in societies that are especially sensitive to sexual relations by a married woman and men. The difference between the offences is that adultery is voluntary, while rape is not.

The term adultery has an Abrahamic origin, though the concept predates Judaism and is found in many other societies. Though the definition and consequences vary between religions, cultures, and legal jurisdictions, the concept is similar in Judaism, Christianity, and Islam. Hinduism has a similar concept.

Historically, adultery has been considered to be a serious offense by many cultures. Even in jurisdictions where adultery is not itself 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, it may be a factor to consider in a property settlement, it may affect the status of children, the custody of children, etc. Moreover, adultery can result in social ostracism in some parts of the world.

Three recent 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.

Etymology

The word adultery originates from the Late Latin word adulterare meaning: breaking a marriage

Adulterare is formed by the combination of ad ("towards"), and alter ("other"), together with the infinitive form are (making it a verb). Thus the meaning could be: "to make other".

Or :"ad-alteram (ire)" = 'to go to a (female!) other'.

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]". 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.

Definitions

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.

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." North Carolina defines adultery as occurring when any man and woman "lewdly and lasciviously associate, bed, and cohabit together." 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." As recently as 2001, Virginia prosecuted an attorney, John R. Bushey of Luray, for adultery, a case that ended in a guilty plea and a $125 fine. Adultery is against the governing law of the U.S. military.

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. 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. This act was also known as desertion, which was often a crime as well. A small number of jurisdictions still allow suits for criminal conversation and/or alienation of affection.

A marriage in which both spouses agree to accept sexual relations by either partner with another person is a form of nonmonogamy, and the spouses would not treat the sexual relations as adultery, although it could still be considered 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.

Prevalence

Durex's Global Sex Survey has found that worldwide 22% of people surveyed have had extramarital sex.

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.

United States

Alfred Kinsey has found in his studies that 50% of males and 26% of females had extramarital sex at least once during their lifetime. Depending on studies, it was estimated that 26–50% of men and 21–38% women, or 22.7% of men and 11.6% of women had extramarital sex. Other authors say that between 20% and 25% of Americans had sex with someone other than their spouse. However, one survey that measured the prevalence of adultery in the 12 months prior to the study showed rates of extramarital sex as low as 2.5% The results suggest that while 15–25% of married Americans have had extramarital sex at least once in their lifetime, extramarital sex occurred infrequently in any one year.

Cultural and religious traditions

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

See also: Religious views on sexual intercourse

Greco-Roman world

A similar rule applied in the old Roman Law. That is, 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.

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".

The lending of wives practiced among some peoples 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)

Abrahamic religions

Biblical sources

The Hebrew Bible (the Tanakh or Old Testament) prohibits adultery in the seventh of the Ten Commandments (Exodus 20:14). Adultery in traditional Judaism applies equally to both parties, but it only applied in situations where the woman is married (Lev. 20:10).

Christianity

Adultery is considered by many 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)

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

See also Expounding of the Law#Adultery and Pauline privilege.

Rabbinic Judaism

Adultery in traditional Judaism applies equally 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 witnesses of good character for conviction. The defendant also must have been warned immediately before performing the act.

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.

Also, Jewish law recognizes the "law of the land" in these matters, so that if the law of the land has greater restrictions, then they will also apply.

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

Islam

Main article: Zina (Arabic)

Zina (زنا) is an Arabic term for extramarital or premarital sex. Strict Islamic law prescribes severe punishments for men and women for the act of Zina. Premarital sex may be punished by up to 100 lashes, while adultery is punished by Rajm (stoning), according to some interpretations of the Islamic law. Punishing by stoning is not mentioned in the Qur'an, and is based solely upon hadith.

Under Muslim law, adultery and extramarital sex 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 God 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]}

"Women impure are for men impure, and men impure are for women impure and women of purity are for men of purity, and men of purity are for women of purity."^{[Quran 24:26]}

Punishments are reserved to the legal authorities and false accusations are to be punished severely. It has been said that these legal procedural requirements were instituted to protect women from slander and false accusations.

Islamic Shariah Courts in Nigeria evoked worldwide condemnation and protest and debate recently in sentencing some Muslim women and men to death by stoning (rajm) upon conviction for zina. Perhaps only Afghanistan, Iran, Nigeria and Saudi Arabia have this law on their books. However, stoning as punishment for sexual sin is not prescribed in the Qur'an, but is prescribed in the hadith—oral traditions relating to the words and deeds of the Islamic prophet Muhammad. Yet, Islam is not only based on the Quran as the Quran is only the foundation setting of Islamic Laws whilst the hadith are its explanation of those laws. The only punishment with regards to illegal intercourse mentioned in the Quran is for the fornicator and not the adulterer and it is one hundred lashes and restriction of future marriage to another fornicator or the partner in the act.

Other historical practices

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.

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."

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.

Consequences

Criminal penalties

Asia

In some East Asian countries, including Korea and Taiwan, 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 China, but constitutes grounds for divorce.

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. 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 of a man for rape is only possible with evidence from no less than four witnesses. In recent years high-profile rape cases in Pakistan have given the Ordinance more exposure than similar laws in other countries. 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. 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. Men have called the law gender discrimination in that women cannot be prosecuted for adultery 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. 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.

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.

Europe

Most European countries have decriminalized adultery. Adultery is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Portugal, Greece or Sweden. In some Southern-European countries, adultery can lead to the so called vendetta, which is illegal (with penalties up to life sentence), but carries reduced sentences.

North America

In the United States, laws vary from state to state. In those states where adultery is still on the statute book (although rarely prosecuted), penalties vary from life sentence (Michigan), to a fine of $10 (Maryland), to a Class I felony (Wisconsin). In the U.S. Military, adultery is a potential court-martial offense. 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. However, occasional prosecutions do occur.

Other consequences

Adultery may result in pregnancy, and the laws of the country that cover termination of a pregnancy and of child support come into play.

In addition, adultery has been grounds for divorce under fault-based divorce laws.

In the original Napoleonic Code, a man could ask to be divorced from his wife if she committed adultery, but the philandery of the husband was not a sufficient grounds for divorce unless he had kept his concubine in the family home.

The act of adultery may not be classified as a criminal offense depending on the nation, local culture, and the predominant religion and values.

Violence

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

Main article: Honor killing

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.

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."

In Syria, Article 548 states that "He who catches his wife or one of his ascendants, descendants or sister committing adultery (flagrante delicto) or illegitimate sexual acts with another and he killed or injured one or both of them benefits from an exemption of penalty."

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."

Stoning

Main article: Stoning

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.

Stoning continues to be practiced today, in parts of the world. Recently, several women have been sentenced to death by stoning after being accused of adultery.

See also

• Adultery in literature
• Affair
• Cuckold
• Crime of passion
• Emotional affair
• Family therapy / Relationship counseling
• Fornication
• Honor killing
• Incidence of monogamy
• Jesus and the woman taken in adultery
• Mistress
• Open marriage
• Polygyny threshold model
• Swinging

References

• Donaldson, Geoff. "The Gay Times of Dustin and Thomas." Dan's Publishing. 2-10. 2009.

Further reading

• McCracken, Peggy: The romance of adultery: queenship and sexual transgression in Old French literature University of Pennsylvania Press 1998 ISBN 0-8122-3432-4
• Mathews, J. "Dating a Married Man: Memoirs from the "Other Women". 2008. ISBN 1-4404-5004-8
• Best Practices: Progressive Family Laws in Muslim Countries (August 2005)
• Hamowy, Ronald. Medicine and the Crimination of Sin: "Self-Abuse" in 19th Century America. pp2/3
• Moultrup, David J. (1990). Husbands, Wives & Lovers. New York: Guilford Press.
• Glass, S. P., and Wright, T. L. (1992). Justifications for extramarital relationships: The association between attitudes, behaviors, and gender. Journal of Sex Research, 29, 361–387.
• Jack Goody A Comparative Approach to Incest and Adultery The British Journal of Sociology, Vol. 7, No. 4 (Dec., 1956), pp. 286–305 doi:10.2307/586694
• Pittman, F. (1989). Private Lies. New York: W. W. Norton Co.
• Rubin, A. M., and Adams, J. R. (1986). Outcomes of sexually open marriages. Journal of Sex Research, 22, 311–319.
• Vaughan, P. (1989). The Monogamy Myth. New York: New Market Press.
• Blow, Adrian J, Hartnett, Kelley. (Apr 2005). Infidelity in Committed Relationships I: A Methodological Review. Journal of Marital and Family Therapy. INFIDELITY IN COMMITTED RELATIONSHIPS I: A METHODOLOGICAL REVIEW | Journal of Marital and Family Therapy | Find Articles at BNET at www.findarticles.com
• Blow, Adrian J, Hartnett, Kelley. (Apr 2005). Infidelity in Committed Relationships II: A Substantive Review. Journal of Marital and Family Therapy. INFIDELITY IN COMMITTED RELATIONSHIPS II: A SUBSTANTIVE REVIEW | Journal of Marital and Family Therapy | Find Articles at BNET at www.findarticles.com
• Adultery Laws in India