Adultery

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

Adultery (anglicised from Latin adulterium) is extramarital sex that is considered objectionable on social, religious, moral or legal grounds. Though what sexual activities constitute adultery varies, as well as the social, religious and legal consequences, the concept exists in many cultures and is similar in Islam, Christianity and Judaism.[1]

Historically, many cultures have considered adultery as a very serious crime. Adultery often incurred severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation or torture.[2] Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In most Western countries, adultery itself is no longer a criminal offense, but may still have legal consequences, particularly in divorce cases. For example, in fault-based family law jurisdictions, adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model. In some societies and among certain religious adherents, adultery may affect the social status of those involved, and may result in social ostracism.

In countries where adultery is a criminal offense, punishments range from fines to caning[3] and even capital punishment. Since the 20th 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 some countries. The head of the United Nations 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 Chandrakirana, has stated that: "Adultery must not be classified as a criminal offence at all".[4] 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".[5]

In Muslim countries that follow sharia law, the punishment for adultery may be stoning.[6] There are 15[7] countries where stoning is authorized as lawful punishment; however instances have occurred outside the legal system (extrajudicially).[8] 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, Taiwan, and several US states. In some jurisdictions, having sexual relations with the king's wife or the wife of his eldest son constitutes treason.[9] By analogy, in cultures which value and normally practice exclusive interpersonal relationships, sexual relations with a person outside the relationship may also be described as infidelity or cheating, and is subject to sanction.

Overview

Public punishment of adulterers in Venice, 17th century

The term adultery refers to sexual acts between a married person and someone who is not that person's spouse.[10][11][12] It may arise in criminal law or in family law. For instance, in the United Kingdom, adultery is not a criminal offense, but is a ground for divorce,[13] with the legal definition of adultery being "physical contact with an alien and unlawful organ".[14] Extramarital sexual acts not fitting this definition are not "adultery" though they may constitute "unreasonable behavior", also a ground of divorce.

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]".[15] Thus, the "purity" of the children of a marriage is corrupted, and the inheritance is altered.

Some adultery laws differentiate based on the sex of the participants, and as a result such laws are often seen as discriminatory, and in some jurisdictions they have been struck down by courts, usually on the basis that they discriminated against women.[16][17]

The term adultery, rather than extramarital sex, implies a moral condemnation of the act; as such it is usually not a neutral term because it carries an implied judgment that the act is wrong.[18]

Definitions and legal constructs

Anne Boleyn was found guilty of adultery and treason and executed in 1536. There is controversy among historians as to whether she had actually committed adultery.[19]
Le supplice des adultères, by Jules Arsène Garnier, showing adulteresses being punished

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.

Traditionally, many cultures, particularly Latin American ones, had strong double standards regarding male and female adultery, with the latter being seen as a much more serious violation.[20][21][22][23]

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" (in a case of murder or manslaughter).[24]

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."[25]

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."[26] North Carolina defines adultery as occurring when any man and woman "lewdly and lasciviously associate, bed, and cohabit together."[27] 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."[28] 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.[29][30] Adultery is against the governing law of the U.S. military.[31]

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.[32] 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.[33] This act was also known as desertion, which was often a crime as well.[34] A small number of jurisdictions still allow suits for criminal conversation and/or alienation of affection.[35] In the United States, seven states still maintain this tort.[36]

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. Polyamory, meaning the practice, desire, or acceptance of intimate relationships that are not exclusive with respect to other sexual or intimate relationships, with knowledge and consent of everyone involved, sometimes involves such marriages. Swinging and open marriages are both a form of non-monogamy, and the spouses would not view the sexual relations as objectionable. However, irrespective of the stated views of the partners, extra-marital relations could still be considered a crime in some legal jurisdictions which criminalize adultery.

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.[37]

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.[38]

Legal issues regarding paternity

Further information: Paternity (law)
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).[39] 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).[40]

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.[41]

Prevalence

Durex's Global Sex Survey found that worldwide 22% of people surveyed admitted to have had extramarital sex.[42][43]

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.[44] Depending on studies, it was estimated that 26–50% of men and 21–38% of women,[45] or 22.7% of men and 11.6% of women, had extramarital sex.[46] Other authors say that between 20% and 25% of Americans had sex with someone other than their spouse.[47]

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.[46][48][49]

The Standard Cross-Cultural Sample described the occurrence of extramarital sex by gender in over 50 pre-industrial cultures. The occurrence of extramarital sex by men is described as "universal" in 6 cultures, "moderate" in 29 cultures, "occasional" in 6 cultures, and "uncommon" in 10 cultures. The occurrence of extramarital sex by women is described as "universal" in 6 cultures, "moderate" in 23 cultures, "occasional" in 9 cultures, and "uncommon" in 15 cultures.[50][51]

Russian sociologists A.V. Goldberg-Altyntsev, A.S. Dedyukhin and K.D. Smirnov studied some aspects of marital infidelity as a separate component of society. In their research (2012-2014), 108 families in the cities of Mozhga, Izhevsk, Sarapul, and Glazov (Russia, the Udmurt Republic) that were directly involved in this social phenomenon were interviewed in order to examine conjugal infidelity. Four types of adultery were established: 1) male infidelity (43.5%); 2) female infidelity (37.0%); 3) infidelity of both partners (16.7%) - a type of marital infidelity when both the man and woman had sexual contact with extramarital partners - 4) pseudoinfidelity (2.8%) - a type of conjugal infidelity when there is no real adultery but it leads to an acute, often irreversible, crisis of family relations-. The third type includes two subtypes: a) asynchronous adultery (13.9%) – infidelity of partners took place (alternate infidelity – 9.3%) or began (parallel infidelity – 4.6%) at different time; b) synchronous adultery (2.8%) – independently of each other partners involved in extramarital sexual relations nearly at the same time. The 4th type can also be divided into two subtypes: a) imaginary infidelity (1.9%), when one partner wants to break off relations, believing (thereby erring) that his legitimate partner has committed adultery; b) simulated infidelity (0.9%), when one partner wants to break off relations and tries to make the appearance of unfaithfulness. (see Goldberg-Altyntsev A.V., Dedyukhin A.S., Smirnov K.D. Some aspects of adultery of the urban population in Udmurt Republic // The theory and practice of gender studies in world science: materials of the VI international scientific conference on May 5–6, 2015. Prague: Vědecko vydavatelské centrum «Sociosféra-CZ», 2015. P. 37-39.[52] In addition, women's actual adultery always leads to disintegration of nuclear type of families (55.2% of all households). Altogether in 72.4% of cases of actual adultery full family disintegration was registered. (see Goldberg-Altyntsev A.V., Dedyukhin A.S., Smirnov K.D. Some aspects of adultery of the urban population in Udmurt Republic // The theory and practice of gender studies in world science: materials of the VI international scientific conference on May 5–6, 2015. Prague: Vědecko vydavatelské centrum «Sociosféra-CZ», 2015. P. 37-39.[52] Men's primary motive of infidelity is called “a one-night stand” (47.7%), women's motive for adultery is a way to find “new love” (32.8%). An important fact for the strength of marriage and family is the sexual compatibility of partners. This feature is well illustrated by the high rates of items “sexual dissatisfaction of his partner” (♀ – 25.9%; ♂ – 33.8%) and “desire to diversify sex life/feel piquancy of polygamous relationships” (♀ – 15.5%; ♂ – 13.8%) for both sexes. On the fourth place in the ranking of motivation of adultery among women is revenge (12.1%). (see Goldberg-Altyntsev A.V., Dedyukhin A.S., Smirnov K.D. Some aspects of adultery of the urban population in Udmurt Republic // The theory and practice of gender studies in world science: materials of the VI international scientific conference on May 5–6, 2015. Prague: Vědecko vydavatelské centrum «Sociosféra-CZ», 2015. P. 37-39.[52] The researchers note that conflicts related to marital infidelity often appear in young families. Most incidents of adultery started in 1st-4th year of the registered marriage. This fact shows the instability of a young nuclear family and difficulty/inefficiency to resolve intrafamilial problems. It was revealed that in the process of the dissolution of the conjugal relationships there was a declining of live quality and health conditions of those involved, and all family members were affected by it. (see Goldberg-Altyntsev A.V., Dedyukhin A.S., Smirnov K.D. Some aspects of adultery of the urban population in Udmurt Republic // The theory and practice of gender studies in world science: materials of the VI international scientific conference on May 5–6, 2015. Prague: Vědecko vydavatelské centrum «Sociosféra-CZ», 2015. P. 37-39.[52]

Cultural and religious traditions

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

Greco-Roman world

Further information: Adultery in Classical Athens

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.[53][54]

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".[55]

According to Plutarch, the lending of wives practiced among some people was also encouraged 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 pseudo-Demosthenic Oration Against Neaera:

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.[56] The two guilty parties were sent to different islands ("dummodo in diversas insulas relegentur"), and part of their property was confiscated.[56] 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

Christianity

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

The Hebrew Bible prohibits adultery in the Sixth Commandment, "Thou shalt not commit adultery." (Exodus 20:12). Leviticus 20:10 prescribes capital punishment for adultery between a man and married woman:

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.

Significantly, the penalty does not extend to sex by an unmarried woman and irrespective of the marital status of the man.

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).

Adultery is considered by Christians to be immoral and a sin, based primarily on passages like Exodus 20:141 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.

Some churches have interpreted adultery to include all sexual relationships outside of marriage, regardless of the marital status of the participants.[57]

Catholicism ties fornication with breaking the sixth commandment in its Catechism.[58]

Until a few decades ago, adultery was a criminal offense in many countries where the dominant religion is Christianity, especially in Roman Catholic countries (see also the section on Europe). Adultery was decriminalized in Argentina in 1995,[59] and in Brazil in 2005;[60] but in some predominantly Catholic countries, such as the Philippines, it remains illegal. The Book of Mormon also prohibits adultery. For instance, Abinadi cites the Ten Commandments when he accuses Noah's priests of sexual immorality.[61] 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.[62]

Book of Mormon prophets and civil leaders often list adultery as an illegal activity along with murder, robbing, and stealing.[63]

Judaism

Adultery in Judaism is prohibited by the Seventh Commandment, "Thou shalt not commit adultery.". 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 eyewitnesses of good character for conviction. The defendant also must have been warned immediately before performing the act.[64] 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.[65] Today, therefore, no death penalty applies.[66]

The death penalty for adultery was strangulation,[67] 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).[68] 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.[69]

According to Judaism, the Seven laws of Noah apply to all of humankind; these laws prohibit adultery with another man's wife.[70]

Islam

Main article: Zina (Arabic)

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.[71] 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.[72]

According to Muhammad, an unmarried person who commits adultery or fornication is punished by flogging 100 times; a married person will too receive the same punishment which is public flogging.[73] 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.[74]

Eastern religions

Hinduism

Ancient texts of Hinduism offer different views on adultery. For example, Wendy Doniger notes Rigveda verse 4.5 as declaring adultery is evil.[75] A more nuanced view is expressed in some smritis. Richard W. Lariviere notes[76] that verse 13.60-61 of Nāradasmṛti qualifies when adultery is not a punishable crime; for example, if a woman comes to a man's house on her own volition and has consensual sex with him even though she is not married to him, then it is not adultery. Further, sex with a married woman was not a punishable crime provided the woman initiates the sex of her own volition, and she has been abandoned by her husband or if her husband is eunuch or her husband does not care.[76] Another text, Manusmriti, declares adultery by husband or wife to be wrong, as well as includes a discussion about sex outside marriage after both the husband and wife consent.[77]

Buddhism

For lay Buddhists, marital fidelity is traditionally considered to be part of Right Action, part of the Eightfold Path.[78] Specifically, it is considered part of the avoidance of sexual misconduct (kamesu miccha-cara veramani in Pali), which defines who is an illicit or inappropriate sexual partner for a man or a woman, depending on their marital status, age, etc. Different Buddhist-influenced cultures have interpreted the specifics of this prohibition differently with respect to practices like multiple marriage and concubinage; in 2015, for example, a Japanese court ruled that paying for prostitution did not constitute adultery, though traditional rules of sexual misconduct forbid a man from having sex with a woman who might be obliged to him for financial reasons.[79]

Other historical practices

An Aztec adulterer being stoned to death; Florentine Codex
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.[80][81] Among the Aztecs, wives caught in adultery were occasionally impaled, although the more usual punishment was to be stoned to death.[82]

The Code of Hammurabi, a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1772 BC, provided drowning as punishment for adultery.[83]

Amputation of the nose - rhinotomy - was a punishment for adultery among many civilizations, including ancient India, ancient Egypt, among Greeks and Romans, and in Byzantium and among the Arabs.[84]

In medieval Europe, early Jewish law mandated stoning for an adulterous wife and her partner.[85]

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.[86]

The christianization of Europe came to mean that, in theory, and unlike with the Romans, there was supposed to be a single sexual standard, where adultery was a sin and against the teachings of the church, regardless of the sex of those involved. In practice, however, the church seemed to have accepted the traditional double standard which punished the adultery of the wife more harshly than that of the husband.[87] Among Germanic tribes, each tribe had its own laws for adultery, and many of them allowed the husband to "take the law in his hands" and commit acts of violence against a wife caught committing adultery.[87][88] In the Middle Ages, adultery in Vienna was punishable by death through impalement.[89] Austria was one of the last Western countries to decriminalize adultery, in 1997.[90]

The Encyclopedia of Diderot & d'Alembert, Vol. 1 (1751) noted the legal double standard from that period, it wrote:[25]

"Furthermore, although the husband who violates conjugal trust is guilty as well as the woman, it is not permitted for her to accuse him, nor to pursue him because of this crime".

Adultery and the law

Africa

Adultery laws vary between nations in Africa.

Asia

Adultery is a crime in Taiwan[91] and the Philippines.[92] It was a crime in Japan until 1947[93] and until 2015 in South Korea.[94] In 2015 South Korea's Constitutional Court overturned that country's law against adultery. Previously, adultery was criminalized in 1953, and violators were subject to 2 years in prison, with the aim of protecting women from divorce. The law was overturned because the court found that adultery is a private matter which the state should not intervened in.[95][96][97] Adultery is not a crime in mainland China, but is a ground for divorce.[98]

In Pakistan, adultery is a crime under the Hudood Ordinance, promulgated in 1979. The Ordinance sets a maximum penalty of death. 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.[99] Similar laws exist in some other Muslim countries, such as Saudi Arabia and Brunei.

In Indian law, adultery is defined as sex between a man and a woman without the consent of the woman's husband.[100] 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.[101] Men have called the law gender discrimination in that women cannot be prosecuted for adultery[102] 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 consequently recommended deletion of the law or reducing it to a civil offense. The Government is yet to act.[103] 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.[104]

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 eyewitnesses 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. 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."[105]

In the Philippines, the law differentiates based on the gender of the spouse. A wife can be charged with the crime of Adultery for having sexual intercourse with a man other than her husband, while a husband can only be charged with the related crime of Concubinage, which is more loosely defined (it requires either keeping the mistress in the family home, or cohabiting with her, or having sexual relations under scandalous circumstances).[106] There are currently proposals to decriminalize adultery in the Philippines.[107]

In regions of Iraq and Syria under ISIL, there have been reports of floggings as well as execution against people who engage in adultery. The method of execution was typically through stoning.[108] ISIL would not merely oppose adultery but also oppose behavior that from their point of view could lead to adultery, such as women not being covered, people of the opposite sex socializing with one another, or even female mannequins in store windows.[109]

Europe

Adultery is no longer a crime in any European country. Among the last Western European countries to repeal their laws were Italy (1969), Malta (1973), Luxembourg (1974), France (1975), Spain (1978), Portugal (1982), Greece (1983), Belgium (1987), Switzerland (1989), and Austria (1997).[110][111][112][113][114][115][116][117]

In most Communist countries adultery was not a crime.[118] Romania was an exception, where adultery was a crime until 2006,[119] though the crime of adultery had a narrow definition, excluding situations where the other spouse encouraged the act or when the act happened at a time the couple was living separate and apart;[120] and in practice prosecutions were extremely rare.[121]

In Turkey adultery laws were held to be invalid in 1996/1998 because the law was deemed discriminatory as it differentiated between women and men. In 2004, there were proposals to introduce a gender-neutral adultery law. The plans were dropped, and it has been suggested that the objections from the European Union played a role.[112][122][123]

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.[124] Examples of women who have been executed for adultery in Medieval and Early Modern Europe include Maria of Brabant, Duchess of Bavaria (in 1256), Agnese Visconti (in 1391), Beatrice Lascaris di Tenda (in 1418), Anne Boleyn (in 1536), and Catherine Howard (in 1542). The enforcement of adultery laws varied by jurisdiction. In England, the last execution for adultery is believed to have taken place in 1654, when a woman named Susan Bounty was hanged.[125]

The European Court of Human Rights (ECHR) 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).[126]

Latin America

Until the 1990s, most Latin American countries had laws against adultery. Adultery has been decriminalized in most of these countries, including Paraguay (1990),[127] Chile (1994),[128] Argentina (1995),[59] Nicaragua (1996),[129] Dominican Republic (1997),[130] Brazil (2005),[60] and Haiti (2005).[131] In some countries, adultery laws have been struck down by courts on the ground that they discriminated against women, such as Guatemala (1996), where the Guatemalan Constitutional Court struck down the adultery law based both on the Constitution’s gender equality clause and on human rights treaties including CEDAW.[17] The adultery law of the Federal Criminal Code of Mexico was repealed in 2011.[132][133]

Australia

Adultery is not a crime in Australia. Under federal law enacted in 1994, sexual conduct between consenting adults (18 years of age or older) is their private matter throughout Australia,[134] irrespective of marital status. Australian states and territories had previously repealed their respective adultery criminal laws. Australia changed to no-fault divorce in 1975, abolishing adultery as a ground for divorce.

United States

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 United States is one of few industrialized countries to have laws criminalizing adultery.[135] In the United States, laws vary from state to state. 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.[136][137][138] Pennsylvania abolished its fornication and adultery laws in 1973.[139]

States which repealed their adultery laws in recent years include West Virginia in 2010,[140] Colorado in 2013,[141] and New Hampshire in 2014.[142]

Adultery remains a criminal offense in 21 states, although prosecutions are rare.[143][144] Massachusetts, Idaho, Oklahoma, Michigan, and Wisconsin consider adultery a felony, while in the other states it is a misdemeanor. It is a Class B misdemeanor in New York[145] and Utah, and a Class I felony in Wisconsin.[146] Penalties vary from a $10 fine (Maryland)[147] to four years in prison (Michigan).[148] In South Carolina, the fine for adultery is up to $500 and/or imprisonment for no more than one year [South Carolina code 16-15-60], and South Carolina divorce laws deny alimony to the adulterous spouse.[149][150][151]

In the last conviction for adultery in Massachusetts in 1983, it was held that the statute was constitutional and 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]."[152] Whether a conviction under this statute would be possible today (especially after Lawrence v. Texas (2003)) is not known.

In Utah, 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.")[153] However, Utah also has a fornication law that applies to any unmarried person (also a class B misdemeanor).[154]

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.[155]

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.[156]

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.[157]

In the U.S. Military, adultery is a potential court-martial offense.[31] 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.[158] However, occasional prosecutions do occur.[159]

Seven US states (Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah) allow the possibility of the tort action of alienation of affections (brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage).[36] In a highly publicized case in 2010, a woman in North Carolina won a $9 million suit against her husband's mistress.[160][161]

Criticism of adultery laws

Political arguments

Laws against adultery have been named as invasive and incompatible with principles of limited government (see Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate) chapter 2). 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. It is also argued that adultery laws are rooted in religious doctrines; which should not be the case for laws in a secular state.

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?[162]

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 (for examples see Criminal conversation) prohibiting men from having sex with women married to other men.[163]

Historical context

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, since women were deemed their husbands' property, with adultery being often defined as sexual intercourse between a married woman and a man other than her husband. Among many cultures the penalty was—and to this day still is, as noted below—capital 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[164] and even menstrual taboos,[165] have been theorized to have originated as preventive measures against cuckolding. This arrangement has been deplored by many modern intellectuals.

Discrimination against women

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.[17][166] UN Women has called for the decriminalization of adultery.[166] A Joint Statement by the United Nations Working Group on discrimination against women in law and in practice in 2012 stated:[17]

"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."

Concerns exist that the existence of "adultery" as a criminal offense (and even in family law) can affect the criminal justice process in cases of domestic assaults and killings, in particular by mitigating murder to manslaughter,[167] or otherwise proving for partial or complete defenses in case of violence. These concerns have been officially raised by the Council of Europe and the UN in recent years. The Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence states that member states should: (...) 57. preclude adultery as an excuse for violence within the family.[168] UN Women has also stated in regard to the defense of provocation and other similar defenses that "laws should clearly state that these defenses do not include or apply to crimes of "honour", adultery, or domestic assault or murder."[169]

Use of limited resources of the criminal law enforcement

An argument against the criminal status of adultery is that the resources of the law enforcement are limited, and that they should be used carefully; by investing them in the investigation and prosecution of adultery (which is very difficult) the curbing of serious violent crimes may suffer.[170]

The importance of consent as the basis of sexual offenses legislation

Human rights organizations have stated that legislation on sexual crimes must be based on consent, and must recognize consent as central, and not trivialize its importance; doing otherwise can lead to legal, social or ethical abuses. Amnesty International, when condemning stoning legislation that targets adultery, among other acts, has referred to "acts which should never be criminalized in the first place, including consensual sexual relations between adults".[171] Salil Shetty, Amnesty International’s Secretary General, said: "It is unbelievable that in the twenty-first century some countries are condoning child marriage and marital rape while others are outlawing abortion, sex outside marriage and same-sex sexual activity – even punishable by death."[172] The My Body My Rights campaign has condemned state control over individual sexual and reproductive decisions; stating "All over the world, people are coerced, criminalized and discriminated against, simply for making choices about their bodies and their lives".[173]

Consequences

General

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.[174] Adultery can be emotionally traumatic for both spouses and often results in divorce.[175] However, in a new work, The New Rules by Dr Catherine Hakim, a British 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."[176]

Adultery may lead to ostracization from certain religious or social groups.[177]

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).[178] 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.[179][180] 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.[181]

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.[182]

If adultery leads to divorce, it also carries higher financial burdens.[183] For example, living expenses and taxes are generally cheaper for married couples than for divorced couples.[184] Legal fees can add up into the tens of thousands of dollars.[183] Divorced spouses may not qualify for benefits such as health insurance, which must then be paid out-of-pocket.[185] Depending on jurisdiction, adultery may negatively affect the outcome of the divorce for the "guilty" spouse, even if adultery is not a criminal offense.[186]

Sexually transmitted infections

Further information: Sexually transmitted disease

Like any sexual contact, extramarital sex opens the possibility of the introduction of sexually-transmitted diseases (STDs) into a marriage. Since most married couples do not routinely use barrier contraceptives,[187] STDs can be introduced to a marriage partner by a spouse engaging in unprotected extramarital sex. 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.[188][189][190] 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 thought they have been infected.[191] Note, that contraceptives offer little protection against some of the STDs, like HPV.

Violence

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 most countries.

Honor killings

Main article: Honor killing

Honor killings are often connected to accusations of adultery. Honor killings continue to be practiced in some parts of the world, particularly (but not only) in parts of South Asia and the Middle East. Honor killings are treated leniently in some legal systems.[192] Honor killings have also taken place in immigrant communities in Europe, Canada and the US. In some parts of the world, honor killings enjoy considerable public support: in one survey, 33.4% of teenagers in Jordan's capital city, Amman, approved of honor killings.[193] A survey in Diyarbakir, Turkey, found that, when asked the appropriate punishment for a woman who has committed adultery, 37% of respondents said she should be killed, while 21% said her nose or ears should be cut off.[194]

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."[195] 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.[196] In recent years, Jordan has amended its Criminal Code to modify its laws which used to offer a complete defense for honor killings.[197]

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."[198][199]

Crimes of passion

Main article: Crime of passion

Crimes of passion are often triggered by jealousy, and, according to Human Rights Watch, "have a similar dynamic [to honor killings] in that the women are killed by male family members and the crimes are perceived as excusable or understandable."[200]

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 the condemned person is pushed from a platform set high enough above a stone floor that the fall would probably result in instantaneous death.[201]

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.[202]

Flogging

In some jurisdictions flogging is a punishment for adultery.[203][204] There are also incidents of extrajudicial floggings, ordered by informal religious courts. In 2011, a 14-year-old girl in Bangladesh died after being publicly lashed, when she was accused of having an affair with a married man. Her punishment was ordered by villagers under Sharia law.[205][206]

Violence between the partners of an adulterous couple

Married people who form relations with extramarital partners or people who engage in relations with partners married to somebody else may be subjected to violence in these relations.[207][208] Because of the nature of adultery - illicit or illegal in many societies - this type of intimate partner violence may go underreported or may not be not be prosecuted when it is reported; and in some jurisdictions this type of violence is not covered by the specific domestic violence laws meant to protect persons in 'legitimate' couples.[209][210]

In fiction

Further information: Adultery in literature

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

See also

References

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