Adultery and the Law

Following some posts in another thread, I wondered what people felt about adultery and the law.

Personally, I don't think the law and adultery belong in the same sentence. Sure, marriage is a legal contract and divorce is the dissolution of that contract, but I don't think any further law is required, especially anything punitive to the "adulterer". Human nature is too diverse and the circumstances too varied to be allow a fair law to be created, in any event.

I'd go further and say that I don't believe that "fault" in marital breakup should be considered when deciding on a split of assets. The only exception I can think of is when one partner has recklessly destroyed the asset base while the other has behaved responsibly.

I'll happily share my personal experiences as the thread progresses, but I will just say that I haven't been on the receiving end of any unfair legal interference, so that isn't driving the question.

Rather, it was simply that it was expressed (in the other thread) that adultery should be a crime and that there should be severe punishment. I didn't agree, but am I alone?

 

Not going into anything personal for this thread for at least the moment.

This historical mugshot was my first thought when I read the original post.
Mugshot for 23 year old Frank Sinatra

 

EDIT: Forgot to mention: I've never been married (but will be sooner than later), have never been cheated on, nor cheated myself.

I'm for both family law and criminal law ramifications for adultery.

My reasoning for any form of punishment to be exacted on the adulterer is as follows:

Regarding family law:

1. As the adulterer has acted in violation of the vows made between both partners verbally and written, financial consequences should follow. For example, losing claim to X% of the 50% asset split; and (in case of a housewive) losing claim to alimony/living allowance.

2. Debatable and this is not something I have my mind set on, but the guilty party may be considered a bad example or of low ethical standard to the couple's children. Custodial consequences may be something to consider.

Regarding criminal law:

I would argue that adulterers very much harm society (see main body of the above quoted text), and since criminal law largely (if not completely) concerns itself with actions by individuals/groups/organizations that harm society, "adultery" as an act should be classified as a crime. Just as crimes such as murder, rape, robbery or kidnapping can be considered crimes against the affected individuals, they are punished primarily for the harm they have caused to society (which is why they are punished even after the victims appeal to the judge to not punish the criminal).

Now, how the severity of adultery is classified by each society is none of my concern. I only advocate "punishment" in general for adultery, but my threshold is very high. Whether adultery is classified akin to theft/robbery or murder/rape (with the corresponding jail times, or even the death penalty), I'm good with it all.

It should be a given that things such as due process and impartial application of the law based on evidence must be pre-requisites.

 

Full disclosure.

I am divorced and was married for 30 years. Around 10 years ago, my wife had an affair with a boyfriend from when she was much younger, which lasted around a year. We decided to continue with the relationship. She ended the affair. However, we knew fairly soon that it wasn't going to work and openly discussed separating when the children left home. I left her pretty much when the kids left.

OK, so was she the "bad guy"? Not really. We get on fine and are able to maintain a friendly relationship (though that is probably only true now that we are through the rockier parts of the actual split and divorce). I am with someone I love very much and she is alone. I'm not crowing, that's just how it is and I hope she finds someone.

Was I guiltless? No. I had "strayed" before - on business trips. I'm not proud of it, but it happened and it happened more than once. Girls would come on to me and it made me feel good about myself (not morally, but in an "I've still got it" kind of way).

Why did she have an affair? Well, she hit that age where a woman feels she is losing "it" and this guy made her feel young again in a way I couldn't. With the best will in the world, it is difficult to carry our the role of good father/husband, etc and not lose some of the excitement along the way. She was tempted, had the opportunity and made the most of it.

It was as much a symptom of the state of our relationship as it was about "cheating".

So, when it came to the divorce, I was looking at a fair way of splitting the assets. This woman was someone I spent many years of my life with and who was the mother of my children. She wasn't some evil bitch and I didn't want to destroy her.

What we needed to do was find an equitable way of splitting everything. She is 7 years older than I am and I have the capacity to earn more than she does. I was always the main breadwinner. Therefore, when it came to share of the house (which we sold) and the pensions, the only way that was viable was that she should receive more than I did. We negotiated a split based on potential income and outgoings going forward (including pension projections for 30 years). The split we arrived at was fair to both parties and we sailed through divorce with no need for a lawyer and no (financial) regrets.

Would I have wanted her (or me) criminalised? No, of course not. Would it have been fair to have made her pay (literally!) for her affair. No. In my experience, when marriages fail, it is usually the fault of both partners. The one who "broke the rules" shouldn't shoulder the "blame" alone. It is a joint failure and the best way forward is to find a loving and healing solution that satisfies all involved.

I do appreciate that this isn't always possible, but the law shouldn't become an additional barrier to healing, in my opinion.

That was just my case. There are others in which partners may be emotional bullies, for example, and should surely be as much to blame as a partner who perhaps finds comfort in someone else's arms before he or she leaves.

The law is too blunt an instrument for this area of human relationships.

 

I can see neither the morality or logic in imposing extreme forms of punishment for adultery.

In Remixer's opinion expressed a bit more emphatically on the other thread, a justice system that would have him imprisoned for life or even sentenced to death would be of benefit to society. How so, I ask?. Would it benefit the other spouse? How about the children? How exactly would it work to benefit society?

Say a husband cheats on his wife and is sentenced to say 25 - 30 years in prison.

Gone is the option of reconciliation between the couple, the chance that they can work through it and come out the other side with a stronger marriage and commitment to each other. Couples find a way to work through the issue of adultery more often than they divorce over it.

Children have lost a father who may have been a very good father and provider despite this shortcoming.

The wife is left to raise the children on her own, increasing the chances they will suffer the sort of social ills Remixer believes the extreme punishment options will address. I see no morality in sentencing an entire family for the irresponsible actions of one member or the logic in increasing the public prison population when the matter is clearly a private one.

In matters of divorce, adultery is difficult to prove and there is no huge benefit to the spouse bringing the charge in most of the US. Marriage as a civil union contract between two people offers only what is included in the broad expression of a marriage vow in the way of legally binding moral obligation. Defining those obligations in detail are generally worked out between the couple themselves. Many married couples have open relationships that allow for other sexual partners. The marriages in that instance are no less legal. Why should the legal system interfere with the morality defined within a marriage? In matters of dividing up a couples finance in a divorce settlement, the adulterous spouse should not suffer unduly unless some legally binding agreement for monetary compensation, in the event of adultery, had been decided upon beforehand. Such as in the wording in a pre-nuptial agreement.

 

The government doesn't need to be involved in every aspect of our lives. Nor, it should not be involved in determining guilt for adultery. Our legal system can't handle criminal cases now. Let alone the prosecution of something like this. I'm not a fan of big governement and think we have too many damned laws at it is. This doesn't need to be one more.

 

I'm for it being able to affect stuff like divorce law... but other than that, I don't think there should be any more legal ramification behind it.

 

In what respects aquafox? Financial, child custody, alimony? What if the non-cheating husband was an abusive alcoholic and the wife was caught spending time with someone who treated her well. How should the court deal with something like that?

 

If anything, a means to make the escape route a bit easier... I wouldn't expect it to be given any greater priority over abusive and violence.
--- merged: Dec 12, 2011 11:15 PM ---
I really don't know anything about divorce law, so I'm a total n000b at this.

 

It should be easier for couples to divorce especially when both are in agreement. The main focus of the court should be on making sure the couple's finances and assets are divided up equitably as well as concern for the welfare of the couple's children. In VA, that is the focus and I think they do a pretty good job in those two areas.

Speaking from experience, children are far more adaptable to the divorce of their parents than they are having to live in a environment where the parents are miserable together. More than the divorce, it's the continuing bitterness between parents that is so detrimental to the children. When both parents can place the welfare of their children above their own resentments, the children fare pretty well and are usually happier, not only for themselves but for their parents.

 

I believe that if a woman cheats on her husband, he should be able to legally have her removed from the home, from all bank accounts, and from access to her children. And, that she should be entitled to no alimony, or any sort of financial assistance from the government or her husband.

Also, I think that a woman found cheating should be charged with a misdemeanor crime so that her employment is affected. She should be required to to disclose her crime to any and all employers and fellow employees. If she is charged with the crime more than 3 times she should be banned from employment and from marriage.

 

how does one even prove that someone has cheated in court? bedroom spy cameras?

 

are there any countries where castration is a legal punishment for certain things?

 

My fingers want to type a response to Eddie's post but then I think of that "Don't feed the trolls" image I put together (used very loosely, as in put text on a screencap) for a Fark thread years ago and I hold myself back.

 

Alistair

Thanks for sharing your experiences. However, I cannot agree with you.

1. There is an available action to take against an emotional bully: divorce. If it's physical abuse, there's both women's shelters and the police to go to.

2. We're talking about official institutions here. There are different avenues one can take over the aforementioned situations, and I believe the appropriate response for the case of adultery would at the very least be financial loss.

3. Your opinion is strongly biased in favor of adultery. There is little point in asking someone who displayed identical or similar behavior to it for their opinion on the kind of punishment that adultery merits. It's like asking Sandusky whether he should face consequences over "horsing around" with boys while naked.

4. In summary, the arguments and example cases you presented do not provide the least mitigating argument for why adultery ultimately happened.

Joniemack

Your position is clear. We differ mainly on how much validity we put on the "harm to society" argument. You would not make the "children have lost a father who may have been a very good father" argument to invalidate punishment had the act been one of murder.

The "harm to society" I referred to before was also taken by you as "harm to spouse, children and self". I take it this happened because I only mentioned those cases.

However, the "harm to society" factor of adultery reaches far beyond the impact on family and self, it literally affects society. The main issue with crimes such as murder and rape is not the impact on the victim, but on society. If behavior of that nature were to be allowed to be acted on without any consequence, a trend may develop within society; one that would change society for the worse, make murder/rape more "acceptable" and the use of which would be less difficult to be committed by the average citizen. Especially with the lack of a deterrent.

Personally, I see adultery on the same level, however with the negative consequences to society being mostly in the psychological arena and some in the physical (refer to the examples I already mentioned). The entire argumentation regarding the harm of adultery is easily dismissed in the West, just as much as the harm of alcohol to society is often dismissed. As I said before, it's so commonplace around us that we're simply too used and numb to it to care.

Our difference is simply that of acceptance of the "harm to society" argument. You clearly do not accept it, and thus do not view punishment for adultery as legitimate.

Further, if you were to accept the "harm to society" argument, you would certainly accept the "harm to the partner" argument. As the partner was harmed (whether psychologically and/or physically as a result of the adultery), the partner not in breach of any vows/promises made in conjunction with the marriage of the couple should, by all means, receive direct compensation. In this light, financial losses and loss of claims stemming from the divorce procedure would not be far-fetched or unfair.

Also: Most likely, one argument in your mind is: some of the consequences (e.g. custodial) boil down to moral/ethics. Who has the right to dictate to the population what morals/ethics to adhere to? It's a subjective matter.
The answer? Don't know. Whoever decided on behalf of society that it's wrong to murder.

Regarding your question on spouses allowing sexual relations with third parties:

Just to clarify: I don't care about institutional definitions of adultery. To me, adultery is "any sexual activity with a party outside of one's matrimony, without the consent of, or while expressly forbidden by, the other matrimonial partner".

Merriam Webster goes with the monogamous Christian definition of "sexual activity with a person outside of matrimony"; Sharia would be something like "sexual activity outside of the married spouse(s)" - remember Muslim men can be married to up to 4 women.

My definition should clear up your question.

 

Hmmm, what would a good troll say to that? If the troll was smart and didn't want to be outed so soon in the discussion, he would say that the man should get the same punishment.

I guess we'll have to wait and see if and how the troll responds.

 

That's between him and God. 1Corinthians 11:3 "Now I want you to realize that the head of every man is Christ, and the head of the woman is the man, and the head of Christ is God."

 

Wow. Is it really the same? What exactly do you base your judgments on? Merely a societal ideal you have absolutely no experience with yet expect everyone should live up to? What would be the legal reasoning behind imposing a financial punishment on the adulterer? Breach of verbal contract? Maybe, but courts stay relatively neutral on the subject of financial division of property, letting lawyers or the couple themselves sort that out and intervening only in cases where it appears one party is obviously getting the short end of the stick. US courts are actually more concerned with whether or not all avenues of reconciliation have been exhausted. Courts know that partners seeking a divorce often have a number of issues including denial of affections (sex) and irreconcilable differences, both of which are common grounds for seeking a divorce. Courts realize that adulterous affairs are often a symptom rather than the cause for a divorce, especially in marriages that have obviously run their course. Should someone then be financially penalized for denial of affections if the other partner suffered through it without resorting to having an adulterous affair?

There are many gray areas to the issue which you may not be aware of. It's possible that you believe divorce is preferable to resorting to adultery. If so, life experience may change your opinion on that (hopefully you'll never have to experience it personally). Some marriages can run for years on hope and determination alone. Hope that things will change, while all the while they deteriorate. Putting aside their own personal happiness in their determination to raise children in a two parent home, pay off a mortgage, and maintain social relationships. There are as many reasons for staying in an dead marriage as there are reasons to marry in the first place. It's rarely lust or a lowering of moral values that leads one into an adulterous affair. Often it's loneliness and the desire for affection. It's a fairly human need and doesn't lessen as we get older. It's something we can't imagine in our youth or in our early years of marriage.

I don't see how one compares with the other. Murder cannot be reconciled to correct the harm done. The murdered person is still dead. Adultery can be reconciled. The loss is mainly one of trust which can be restored.

This argument is no more valid than a religious one. The only difference being, law is the reason for good behavior instead of God.

If deterrents don't work to deter murder, how will they work to deter adultery?

I don't believe that there is any more or less disassociation with the problem in the West than in other countries and cultures. Nor do I believe that adultery is any more of a problem here than anywhere else. It generally goes on in secret. Perhaps Western cultures are just not as secretive about it or quite as clever as others and are more prone to getting caught.

I prefer the pro-active approach to supporting couples who are having problems in their marriage before one partner or the other resorts to adultery or abuse or alcohol or any of the myriad problems that can arise in any marriage.

I believe the question about the wrongfulness of murder was decided long, long ago. Western justice, rather than attempt to impose it, has veered away from the role of dictating what sexual practices are morally acceptable within the confines of a marriage. There's obviously a reason for that. The void has been somewhat filled by religion.

The evolutionary benefit of monogamy is well documented and for the most part, all cultures adhere to some form of it. If adultery was a severely negative factor to our survival we would not be here discussing it. It could very well be that having multiple sexual partners in conjunction with a "monogamous" relationship for the purposes of raising children, has been a benefit to our survival.

You misunderstood my comment then. I merely brought up the idea of "open" marriages to point out that their occurrence does not null and void a marriage in legal terms. Monogamy in a sexual sense within a marriage is promoted by Western governments but not enforced.
--- merged: Dec 13, 2011 2:36 AM ---

What a good troll. By the book response.