Adultery

Jules Arsene Garnier

Family law

Entering into marriage

Prenuptial agreement Marriage Common-law marriage Same-sex marriage

Legal states similar to marriage

Cohabitation · Civil union Domestic partnership Registered partnership Putative marriage

Dissolution of marriage

Annulment · Divorce · Alimony

Issues affecting children

Paternity · Legitimacy Adoption · Legal guardian Ward · Emancipation of minors Foster care Child Protective Services (United States) Parental responsibility Contact (including visitation) Residence in English law Custody · Child support

Related areas

Spousal abuse · Child abuse Child abduction · Child marriage Adultery · Bigamy · Incest

Conflict of laws

Marriage · Nullity · Divorce

Adultery is the voluntary sexual intercourse between a married person and another person who is not his or her spouse, though in many places it is only considered adultery when a married woman has sexual relations with someone who is not her husband. In most cases, in Western countries, only the married party is said to have committed adultery, and if both parties are married (but not to each other) then they both commit separate acts of adultery. In other countries, both parties to the adultery are considered guilty, while in others again only the woman is able to commit adultery and to be considered guilty.

Adultery is also referred to as extramarital sex, philandary, or infidelity, but does not include fornication. The term "adultery" for many people carries a moral or religious association, while the term "extramarital sex" is morally or judgmentally neutral.

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, such as some Muslim countries.^[1] The difference between the offenses is that adultery is voluntary, while rape is not.

The term adultery has a Judeo-Christian origin, though the concept of marital fidelity 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, and Hinduism has a similar concept. But the word should be used cautiously when discussing various cultures, some of which permit less permanent forms of marriage, or even sexual "lending."^[2]

Historically, adultery has been considered to be a serious offense by many cultures. In some countries, adultery is a crime. However, 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 had engaged in extramarital sex.^[3][4][5]

Etymology

The word adultery originates not from "adult," as is commonly thought in english-speaking countries, but from the Late Latin word for "to alter, corrupt": adulterare.^[6]

Adulterare in turn is formed by the combination of ad ("towards"), and alter ("other"), together with the infinitive form are (making it a verb). Thus the meaning is literally "to make other." In contrast, the word "adult" (meaning a person of mature years) comes from another Latin root, adolescere, meaning to grow up or mature: a combination of ad ("towards"), alere ("to nourish", "to grow"), and the inchoative infix sc (meaning "to enter into a state of").^[6]

Definitions

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."^[7] North Carolina defines adultery as when any man and woman "lewdly and lasciviously associate, bed, and cohabit together."^[8] Minnesota defines adultery as: "when a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery."^[9] Adultery is against the governing law of the U.S. military.^[10]

Adultery was known in earlier times by the legal term "criminal conversation" (another term, alienation of affection, is used when one spouse deserts the other for a third person).

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.

Some cultures distinguish adultery from infidelity: for example, Germany defines adultery as a "crime against marriage,"^[11] while infidelity is not.

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

Alfred Kinsey has found in his studies that 50% of males and 26% of females had extramarital sex ^[12]. Depending on studies, it was estimated that 26-50% of men and 21-38% women^[13], or 22.7% of men and 11.6% of women had extramarital sex^[14]. Other authors say that between 20% and 25% Americans had sex with someone other than their spouse^[15]. Durex's Global Sex Survey has found that 44% of adults worldwide have had one-night extramarital sex and 22% have had an affair^[16]. But there were also studies that have shown rates of extramarital sex as low as 2.5%^[13].

Cultural and religious traditions

Close relationships

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

Main article: Religious views on sexual intercourse

Biblical sources

The Hebrew Bible (the Tanakh or Christian Old Testament) prohibits adultery in the seventh of the Ten Commandments (Exodus 20:14).

Deuteronomy 22:22 defines adultery as sexual relations between a married woman and a man other than her husband. Both are guilty, and the penalty is death:

If a man commits adultery with another man's wife – with the wife of his neighbor – both the adulterer and the adulteress must be put to death.^[17]

A consequence is that, under biblical law, sexual relations by an unmarried woman does not lead to adultery, whether the man is married or not.

These provisions are consistent with the provisions covering the practice of polygyny. It also fits with the prohibition of polyandry, as a woman cannot be married to more than one man without committing adultery. It has been suggested that the reasoning of these rules is to ensure that a child's paternity is always known, and not in doubt.

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.^[18]

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) (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".^[19]

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)

Christianity

Adultery is considered by many Christians to be immoral and a sin, based primarily on passages like 1 Corinthians 6:9-10.

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)

Rabbinic Judaism

Though the Torah prescribes the death penalty by stoning for adultery, the legal procedural requirements were very exacting and required the testimony of two witnesses of good character for conviction. In practice, nobody is convicted of adultery.

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, 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.

Islam

Main article: Zina (Arabic)

Under Muslim law, adultery (extramarital sex in general) is sexual intercourse by a married person (whether man or woman) with someone to which they are not married. Adultery is a violation of the marital contract and one of the major sins and is condemned by God in the Qur'an. Zina means consensual premarital sex.

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)

Though strict Muslim law prescribes severe punishments for extramarital sex, by both men and women (premarital sex is punishable with up to 100 lashes, while adultery is punishable by stoning), to obtain conviction of zina[consensual premarital sex], the act of sexual penetration must be attested by at least four male Muslim witnesses of good character, with the accused having a right to testify and their testimony given the most weight in the eyes of the judge(s). Also, punishments are reserved to the legal authorities and false accusations are to be punished severely.^[20][21] It has been said that these legal procedural requirements were instituted to make it impossible to obtain conviction.^[22]

Other historical practices

Historically, adultery was rigorously condemned and punished, usually only as a violation of the husband's rights. Among such peoples the wife was commonly reckoned as the property of her spouse, and adultery was therefore identified with theft. But it was theft of an aggravated kind, as the property which it would spoliate was more highly appraised than other chattels. It is not the seducer alone who suffers.

Severe penalties were imposed on an adulterous wife by her husband. In many instances she is made to endure a bodily mutilation which will, in the mind of the aggrieved husband, prevent her from ever being a temptation to other men again (Schoolcraft, Historical and Statistical Information Respecting the History, Condition and Prospects of the Indian Tribes of the United States, I, 236; V, 683, 684, 686; also H.H. Bancroft, The Native Races of the Pacific States of North America, I, 514).

If, however, the wronged husband could visit swift and terrible retribution upon the adulterous wife, the latter was allowed no cause against the unfaithful husband; and this discrimination found in the practices of ancient peoples is moreover set forth in nearly all ancient codes of law.

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." (Laws of Manu, V, 154; VIII, 371)

Consequences

Sex and the law
Bishop John Atherton, hanged for Sodomy.
Social Issues
Sex and the law · Age of Consent · Rights
Pornography · Miscegenation · Censorship
Same-sex marriage · Red-light district
Norms · Slavery · Objectification
Antisexualism · Violence · Ethics
Public morality · Homophobia · Essentialism
Specific Offenses
May vary according to Jurisdiction
Sodomy and Buggery · Bestiality · Rape
Statutory rape · Incest · Extreme pornography
Sexual assault · Public indecency · Adultery
Sexual Abuse · Child Sexual Abuse
Sexual harassment · Prostitution and Pimping
Deviant sexual intercourse · Child pornography
Child grooming · Prostitution of children
Portals: Law · Criminal justice

Criminal penalties

Most western countries have de-criminalised adultery. Adultery is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland or Sweden.

In the United States, laws vary from state to state. In those States where adultery is still on the statute books, even though they are rarely prosecuted, the penalties vary from life sentence (Michigan)^[23], 2 years imprisonment (Pennsylvania), or a fine of $10 (Maryland). In the U.S. Military, adultery is a potential court-martial offense.^[10] The enforceability of adultery laws in the United States has been / is being questioned following Supreme Court decisions since 1965 relating to privacy and sexual intimacy of consenting adults, in cases such as Lawrence v. Texas.

In some countries, including Korea, and Taiwan, adultery continues to be a crime, though prosecutions are very rare.

Adultery had at one time attracted severe sanctions, including the death penalty. In some places, such as Iran, the method of punishment for adultery is stoning to death.^[24] It has been suggested that Iranian officials are avoiding imposing the penalty because of social objections. 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.

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.^[25] 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 5 years (even if he himself was unmarried) whereas the married woman can not be jailed^[26]. Men have called the law gender discrimination in that women cannot be prosecuted for adultery^[27] 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^[28]. 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^[29].

Other consequences

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.

In Canadian law, adultery is defined under the Divorce Act. Though the written definition sets it as extramarital relations with someone of the opposite sex, the Civil Marriage Act gave grounds for a British Columbia judge to strike that definition down. In a 2005 case of a woman filing for divorce, her husband had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.

Apart from criminal consequences, historically adulterers have suffered from society's disapproving attitudes toward them. The nature of these attitudes vary widely depending on local culture, religion and values, and how seriously the adulterer regards the opinions of others.

See also

• Adultery in literature
• Affair
• Cuckold
• Crime of passion
• Emotional affair
• Family therapy / Relationship counseling
• Fornication
• Honor killing
• Incidence of monogamy
• Mistress
• Open marriage
• Swinging

References

• Definition of Adultery Collection of legal definitions

Links

• Best Practices: Progressive Family Laws in Muslim Countries (August 2005} [1]
• Hamowy, Ronald. Medicine and the Crimination of Sin: "Self-Abuse" in 19th Century America. pp2/3 [2]
• Moultrup, David J. (1990). Husbands, Wives & Lovers. New York: Guilford Press.
• Glass, S. P., & 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., & 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