Adultery: Infidelity and The Law
(Harvard University Press)
US: Mar 2016
In Adultery: Infidelity and the Law, Stanford law professor Deborah L. Rhode argues that the US should remove civil and criminal penalties for adultery. Rhode cites the infrequency and inconsistency with which current laws on the matter are enforced.
Moreover, she argues that these penalties are out of tune with current social values. She cites a “fundamental ambivalence” that is reflected in the presence of such laws. While society generally disapproves of marital infidelity, support for laws that enforce criminal penalties has decreased. She notes that many remained surprised by these laws, a matter that speaks, she writes, to the outmoded nature of such legal strictures. She adds, “Marriage as an instruction is worthy of public respect” while “criminalizing extramarital affairs is not the best way of supporting it.”
Open and polyamorous marriages suggest that American society acknowledges that there are instances in which infidelity can be a consensual act. Certain professional climates, although not openly encouraging this violation of marital vows, do little to stop its perpetuation. The military is one sector in which extra-marital fairs are tolerated while, at the same time, punishment for these affairs is not meted out equitably.
Moreover, not all forms of adultery are the same. We hold little empirical evidence about the man who engages in a single one-night stand or the woman who is a serial philanderer. What we do know is that those who attend regular religious services are less likely to look for sex outside the marriage and that age, class and gender play a role in the likelihood that a partner will commit adultery. Men are more likely candidates regardless of age, with the incidence of women seeking an extra-marital partner tapers at around age 50.
If infidelity is widely unacceptable, then why do partners look beyond their marriage for sex? The answer ranges between problems in a marriage (which may or may not be sexual in nature), while other answers vary from depression to revenge. The former is the most common, though Rhode adds that even relationships undergoing little or no turbulence are not immune. A one-night stand with a coworker can, in some instances, seem normal to the actors, a way to gain excitement or even self-esteem. The short answer is that we may never know the exact reasons any more than we can provide exacting evidence for why some marriages fail.
The personal consequences are myriad. While most affairs bring a sense of exhilaration, it can be-short lived. If the wrong is discovered by a partner or the person initiating the dalliance feels remorse, the devastation that ensues can be life-threatening. But some even report a renewed vigor and sense of boding in their long-term relationship. Others, of course, begin a new and sometimes lasting relationship with the person they sought outside their marriage.
Most couples report significant and last damage, however. Children and the wrong spouse often suffer the most on an emotional level, as might the new partner. Having committed adultery with a married woman or man brings its own stigmas and wreaks its own havoc on the unmarried partner, too.
What Rhode ultimately suggests is that one can survey the devastation infidelity creates but still argue against it playing a factor in custody, employment, military service and a range other arenas.
Rhode opens the body of the book with a discussion of legal perspectives. She writes that English common law in and up to the 17th Century adhered to a strict Biblical interpretation and definition of adultery, which essentially meant “intercourse by a married woman with a man other than her husband”. That law in and of itself implied an imbalance in punishment because a married man having sex with an unmarried woman “constituted the lesser offense of fornication”.
As strictures around the offense tightened during the time of Oliver Cromwell, adultery became a capital offense, though that punishment was reserved for cases that were “open and notorious”. If the actors in the affair carried on in such a way that their relationship became common knowledge and therefore was harmful to the greater institution of marriage and society as a whole, the punishment could then include death.
The reluctance of English courts to grant divorces remained a factor in infidelity well into the 19th century. In 1858 fewer than 300 divorces granted and only four of those to women, this is a curious fact given that the main acceptable factor in the granting of a divorce was an adulterous husband. There were, however, other avenues if one were wealthy, including ecclesiastical courts, which would grant a separation of bed and board, which would ultimately see the new couple living in a kind of open adultery. With royals allowed mistresses until the end of that century it became increasingly difficult for subjects not to feel as though there was a double standard at play.
Colonization in America offered its own set of complications, as it became a common practice for men to take on local mistresses. Much of the injustice in these laws is reflected in the law of the times, which held that women were the property of their husbands. In America, women could be punished by public beatings while men continued with fewer consequences. Men often had financial sovereignty and could therefore have the offense dismissed with the paying of a fine.
If those practices seem antiquated, they are but not by much. In the 20th Century, infidelity became a marker of poor moral character in the eyes of the law. Having an open record of infidelity could be used to deny citizenship, though a lack of clear definition allowed enough latitude for some courts to uphold this as part of their consideration in naturalization cases while others could entirely ignore it. The inconsistent nature and understanding of laws governing infidelity have upheld an “unwritten law” in America. This being that a man could murder his wife’s lover and feel assured that no conviction would result. To this day, juries are frequently more tolerant in how they convict men in such cases.
If the minutiae of the legal system in these matters can be daunting for the non-legal scholar, the simplest point to be made is this: A lack of consistency in the punishment of affairs makes its own argument that infidelity is largely a matter for which the personal and public consequences carry enough weight to be considered justice.
Today, infidelity plays a diminished role in divorce cases, though when it is a factor the punitive element remains inconsistent. An affair carried on after a couple has separated can bar alimony. Acts that do not include the sex act itself can be punished as though infidelity actually occurred which can, in many cases, have devastating consequences on the family.
With the professional world sometimes being a stage for infidelity, Rhode examines extra-marital affairs among those enlisted in the military. There, extended periods of time spent away from a spouse, and a climate that tolerates without entirely condoning extra-marital affairs, has perpetuated the presence of infidelity. Just as in the civilian world, in the military, there is no uniform way of dealing with the infraction.
Most notably, gender appears to play large role in the perceived inequality with how the service deals with infidelity. Rhode writes of Lieutenant Commander Syneeda Penland who was court-martialed in 2008 and convicted of conduct unbecoming after an affair with an unmarried partner. Penland lost severance pay, health benefits and her military pension in a climate where court-martials are rare among enlisted men. It’s an issue that the notoriously conservative military must grapple with as much as the civilian sphere.
Adding to her notion that laws governing extra-marital affairs is her discussion of alternative lifestyles. Open marriages and “swingers” provide a landscape where this behavior is tolerated and encouraged. Moreover, some couples report benefits to their marriage and a deeper sense of self-awareness. Equally notable is that people engaged in these lifestyles rarely fit the image we hold of swingers. They are often conservative, church going and satisfied with their lives in and outside their unions.
Adding to the notion that the court of public opinion can be the most telling in deciding these cases, she points to notorious womanizers in the political sphere. She examines President Bill Clinton’s dalliances in close detail. Some hold an image of him as a serial philanderer, but were reluctant to support his impeachment. She notes that elected officials in similar positions of power in other nations carry on sex scandals in ways that are less concealed and, ultimately, more tolerated. Public opinion seems to be that harm done to marriages or long-standing relationships becomes a matter for the couple(s) to resolve and that so long as the public is not directly impacted, punishment and discussion of the matter should not be prolonged.
But the court of public opinion can be equally fickle. Clinton has emerged from his scandal with some semblance of his image and dignity intact. Others have not fared so well. Gary Hart, a onetime presidential candidate, banked on Clinton’s affair with Jennifer Flowers remaining a matter of personal interest. His perceived arrogance in the matter ruined his political career, as the affair has overshadowed much of the political good he may have done.
Clinton, on the other hand, received his penance in public and although remained somewhat defiant, found sympathizers because of his natural charisma and the perceived good he had done as President. Arrogance, Rhode writes, was also a factor in the downfalls of John Edwards and Eliot Spitzer, while John F. Kennedy’s ability to massage the public’s image of him has rendered his open and egregious displays of extra-marital liaisons almost anecdotal.
Female candidates are less prone to sex scandals because, Rhode writes, they exist in a climate where double standards about infidelity are more intense and the resulting fallout is much more likely to damage their careers than the careers of male counterparts.
Rhode concludes that criminal prohibitions on infidelity should be repealed, along with the abolition of civil damages related to it. The military should follow the civilian courts and adultery should be less a consideration in financial or custody award made by courts. If monogamy itself, she adds, is its own rich and fulfilling reward, then the courts have little to worry about. T he consensual sexual conduct of citizens can remain a matter of their own concern.
Adultery offers its challenges for those outside the realm of legal history: The patient terms in which Rhode outlines legal cases and their outcomes could read as esoteric and even inaccessible. For those fascinated by the history of this common but largely intolerable act, the volume is thorough and contributes to an argument that no doubt will continue for some time to come.
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