Adultery in Law

March 10, 2009 | 70 comments

I had a buddy in high school who was a fierce Navajo patriot. He bitterly resented what had become of his people. I needled him once on how much better off the Navajo were now with roads, and medicines, and aqueducts, and things. His voice got strangled and he could hardly say anything. He finally choked this out: “before you white men came, when we caught an adulterer we had horses drag him to death.”

If I had to bet, I’d bet that the Navajo didn’t really used to do that, or if they did they didn’t do it to all adulterers, male and female, in-group or out-group, alike. But that’s not the point. Adultery is something that matters a lot to people. It hits them in the gut. And widespread tolerance of adultery is an acid to the institution of marriage. But our law hardly does anything about it.

Today Maggie Gallagher proposed a revived adultery tort (alienation of affection) that would make the other man or the other woman liable to the wronged spouse. Something like it sounds like a good idea to me.

I would also favor making adultery a prominent factor in determining custody in a divorce. Making adultery a crime again has its attractions to, though whether we should have laws on the books that rarely get enforced is a question.

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70 Responses to Adultery in Law

  1. A different Adam on March 10, 2009 at 1:02 pm

    Is there evidence to indicate that passage/enforcement of adultery laws will actually deter adulterers? Even assuming a deterrent, will forcing a (presumably) unhappy couple together really “protect marriage”?

  2. Shawn on March 10, 2009 at 1:08 pm

    If you are going to ban the gays and lesbians from falling in love and spending their lives married all in the name of “protecting traditional marriage” then you straights better sure as heck stop being so hypocritical and start punishing those that don’t live up to marriage vows! I think the horse dragging idea is a good start.

    And why would you ever allow a parent to see their child again after they demonstrate they cannot keep a vow of monogamy? You actually think a child should be exposed to such an environment?

  3. bloggernacleburner on March 10, 2009 at 1:09 pm

    Politicians enacting a law against adultery?

    I think I read it somewhere… right next to the proposal for ending the Irish famine?

  4. Shawn on March 10, 2009 at 1:18 pm


    Since when did a law against adultery become an antiquated idea? It is eternal, is it not?

  5. Adam Greenwood on March 10, 2009 at 1:25 pm

    Easy there, Shawn. This isn’t a gay marriage thread and I have no qualms about deleting comments.

  6. Adam Greenwood on March 10, 2009 at 1:30 pm

    Even assuming a deterrent, will forcing a (presumably) unhappy couple together really “protect marriage”?

    You’re getting your libertinisms crossed, I think. That’s the argument for easy, no-fault divorce, not the argument for tolerating adultery. Punishing adultery doesn’t stop people from divorcing, it just stops them from cheating before they divorce.

    The real concern with adultery legislation (be it criminal or civil) is the tendency it might have to keep families from patching things up after one spouse cheated.

  7. Trent on March 10, 2009 at 1:35 pm

    I have had the same thought as the author. The state, under our current system, has its hand in marriage to a fair extent. It is essentially a state-approved contract to stay together as a family, and divorce proceedings, support obligations, etc., are all subject to state control. Why shouldn’t the violation of a duty to stay sexually loyal in that arrangment also have consequences? A harm has been done, right?

    Money damages do tend to create a deterrent factor for most behaviors. I don’t know that such a cause of action would force unhappy couples together, divorce laws would not be affected. Such a tort might just give those with a wandering eye reason enough to stop that behavior and focus on fixing or terminating their relationship.

  8. Hunter on March 10, 2009 at 1:48 pm

    I am in favor of adultery being taken into account during divorce proceedings (instead of calling it a no-fault divorce, why not call a spade a spade?). However, I am NOT in favor of adultery being taken into account when determining child custody. There are no compelling reasons that the children should be made to suffer if the adulterous spouse is otherwise the better caregiver.

  9. Adam Greenwood on March 10, 2009 at 1:50 pm

    A friend reminds me that adultery is a crime in the military and is sometimes prosecuted there, usually when the aggrieved is also in the military.

  10. Adam Greenwood on March 10, 2009 at 1:51 pm

    how else would you take it into account? Property split and alimony?

  11. Shawn on March 10, 2009 at 2:02 pm


    How can the adulterous spouse ever be the better caregiver? They have demonstrated that they cannot be trusted to place the welfare of the children over their own selfish, lustful desires! Plus they have destroyed a marriage, in effect, shattering the stable, predictable, comforting world their children have known and breaking up the relationship with the non-adulterous spouse.

  12. Naismith on March 10, 2009 at 2:02 pm

    I am reminded of Cindy McCain’s comments to the convention this past summer, about how she was looking for a great dad for her future kids, and “hit a home run” in John McCain.

    Who of course was married to someone else at the time she met him.

    Which apparently didn’t matter to her, perhaps because she was used to being rich enough to buy whatever she wanted.

  13. Hunter on March 10, 2009 at 2:03 pm

    I’m not a family law attorney, but my understanding is that most “fault” divorces are called “no fault” and simply terminated on the grounds of “irreconciliable differences.” Rather, in cases of adultery, I think the parties, and judges, should be willing to say that, where appropriate, the grounds for the divorce were “adultery,” instead of treating the terms as “so passe’” and ignoring it.

    In cases where children are involved, to have the grounds for the divorce affect the property split and alimony would often also affect the children and I would be loathe to go there.

    So, I would take adultery into account probably no more than re-introducing the legal term into the proceedings and decree. It sounds like a nominal thing, but it’s important, I think.

  14. Hunter on March 10, 2009 at 2:09 pm

    Shawn: You ask how can the adulterous spouse ever be the better caregiver? I’ll take the bait.

    I grant that committing adultery shows a disregard for the marriage, but a disregard for a marriage doesn’t necessarily translate into a complete disregard for the children. But to answer your question specifically: When the non-adulterous spouse has a propensity for violence and has indicated that s/he is not interested in caring for the kids, that’s when.

  15. Alison Moore Smith on March 10, 2009 at 2:17 pm

    There are no compelling reasons that the children should be made to suffer if the adulterous spouse is otherwise the better caregiver.

    That’s a pretty sweeping “otherwise.” Kind of like, “There are no compelling reasons that a country should be made to suffer if the treasonous official is an otherwise better leader.”

    McCain (the second Mrs.) also giggled through the story of the party where she met her husband-to-be. So charming to have an old married father skirt-chasing after a few cocktails. That’s pretty much what I was looking for in a father to my future children.

  16. Kaimi on March 10, 2009 at 2:34 pm

    Harsh legal punishments for adulterers . . . hmm, if only there were a relevant scriptural passage on that topic.

  17. Hunter on March 10, 2009 at 2:37 pm

    Yep, that “otherwise” might be huge, depending on the case. But I still hold that an adulterous spouse can be a good caregiver. Do you think adultery disqualifies a parent from having any custody?

  18. Hunter on March 10, 2009 at 2:41 pm

    And for the record, no, I’ve never been divorced, and no, I’ve never committed adultery. But I do associate with tax collectors, lawyers, and other low lifes. [grin]

  19. Jeremy Jensen on March 10, 2009 at 2:48 pm

    Aside from the fact that harsh legal penalties for adultery would take the decision making for how to handle the situation out of the hands of the couple(s) in question, it would be nearly impossible to prove beyond a reasonable doubt.

  20. Adam Greenwood on March 10, 2009 at 2:53 pm

    Hunter, #13,
    I’m sympathetic to merely nominal things.

  21. Hunter on March 10, 2009 at 2:54 pm

    I don’t think the standard is “beyond a reasonable doubt,” but rather by a “preponderance of the evidence.” Still, hard to prove, perhaps.

  22. Adam Greenwood on March 10, 2009 at 2:54 pm

    do you think civil liability is the equivalent of being stoned to death? Don’t let your brain shut down whenever sex gets mentioned.

  23. Alison Moore Smith on March 10, 2009 at 2:58 pm

    But I still hold that an adulterous spouse can be a good caregiver.

    I think an adulterer can be a caregiver. And even a “better” caregiver than some other “low lifes.” But a “good” one? No. Being faithful and loyal to the other parent of your children is pretty much a requirement for goodness in my book.

  24. Adam Greenwood on March 10, 2009 at 2:59 pm

    civil liability does not take decisionmaking out of the hands of the couple. Criminal liability may or may not, depending on whether the jurisdiction requires the aggrieved party to press charges or not.

  25. Adam Greenwood on March 10, 2009 at 3:01 pm

    its not as easy as that. What if one spouse is disabled or incapacitated, or on drugs, or has a history of violence, or has a criminal record, and the other spouse cheats? Taking the kids away from both parents is pretty likely to screw up the kids too.

    [update: I think I misread what you were saying. Agreed that someone who's cheating on their children's parent is not being a good caregiver.]

  26. Hunter on March 10, 2009 at 3:04 pm

    Adam, I’m curious what your reasons are for making adultery a “prominent” factor in determining custody? Doesn’t it sort of stray into a form of punishing the children because of the sins of the fathers/mothers?

  27. Hunter on March 10, 2009 at 3:08 pm

    By “good caregiver,” I don’t mean “good” in the generic sense that they are good and kind, and smiley and happy, pay their taxes and wave to the passing pedestrian. I mean “good caregiver,” as in a custodian who takes good care of the kids.

    I’m *not* arguing that adultery makes you a good parent. Au contraire. But I am arguing that it shouldn’t disqualify you from being a parent forever and evermore, amen.

  28. Adam Greenwood on March 10, 2009 at 3:15 pm

    punishment has to be intentional, no? After all, if I throw someone’s mom or dad in jail, the kids will sometimes be worse off (depending on the parent). Or if I fire someone for incompetence or whatever.

  29. Adam Greenwood on March 10, 2009 at 3:17 pm

    But I am arguing that it shouldn’t disqualify you from being a parent forever and evermore, amen.

    I don’t think anyone’s arguing this. Sounds like a strawman to me.

    The real argument is whether a history of adultery–or adultery that caused the divorce–should play a factor in divorce proceedings. I don’t think your position is nuts but the people who take the other side aren’t nuts either.

  30. Hunter on March 10, 2009 at 3:27 pm

    True, and good points. I’ve said too much already, so I’m going to bow out for a time. But I’m still waiting to hear why adultery should figure prominently in child custody determinations, as opposed to, say, cheating on your taxes, lying to your spouse, hiring illegal aliens, etc., etc.

  31. jks on March 10, 2009 at 3:36 pm

    Didn’t most states have laws where fault was determined when divorcing, but now in most states you can cheat all you want and it doesn’t hurt you in court in the divorce settlement or custody?
    The problem is proving adultery or innocence? What if you are just working with someone, or helping a stranger, etc. How do you prove sexual relations did or did not happen?

  32. Shawn on March 10, 2009 at 3:38 pm

    My dearest Hunter,

    Adultery is the failure of a vow, a responsibility and a contract. It demonstrates that that person is not to be trusted with greater responsibilities. S/he did not prove themselves capable of measuring up. That person did not place the needs of the non-adulterous spouse before their own selfish lustful desires. That person did not give consideration to the pain and heartache they would cause the family that was created by their marriage.

    So now we have to decide who has demonstrated that they have the ability to raise the children that resulted from that marriage. The responsibilities of caring for, nurturing, and protecting the children require a person to be trustworthy, responsible, understanding of other’s feelings, sensitive to the needs of others, and reliable.

    Why is it that hard to understand why adultery would dis-qualify a person for custody?

    Cheating on your taxes, lying to your spouse, hiring illegal aliens does not DIRECTLY destroy the lives of the ones that you are seeking custody of! You created the marriage and the subsequent family, you then fail to nurture and uphold the marriage and family, and then you turn around and want to take control of the remnants of what you destroyed!!! All in the name of wanting to build it back up again? Does this make any sense? How can you be trusted?

    Modern society has gotten to the point where we separate marriage from child-rearing but the Gospel teaches us they are one and the same. You can’t treat them as separate items. They are united in the Eternal Covenant.

  33. Adam Greenwood on March 10, 2009 at 3:42 pm

    I’m comfortable saying that an adulterous spouse will usually have disproportionately contributed to the break-up of the marriage. Breaking up marriage is bad for kids, so I’d want that to be a factor both in determining who gets custody and in resolving the fallout of the divorce.

    ‘What’s best for the kids’ is not and probably should not be the only consideration in divorce law. If it were, in theory the state could forcibly divorce you if it thought you were a bad parent, but that’s absurd.

  34. Adam Greenwood on March 10, 2009 at 3:45 pm

    proof can get a little sticky and trying to prove adultery can make divorce proceedings messier, though usually when adultery has happened the proceedings are going to be messy regardless. That’s one argument for pure no-fault divorce.

  35. SGarff on March 10, 2009 at 4:21 pm

    Thanks Adam,
    These laws make a lot of sense to me. One of the major purposes of tort law is to encourage people to settle their disputes peaceably and in a civilized manner. Tort law offers a forum to do this in a controlled environment with rules that aim towards fairness and civility. Tort law is an alternative to violence and retaliation. Few things inspire violence and retaliation more than adultery. We should give people a forum where they can resolve such disputes in a fair and peaceful manner.

  36. Jeremiah J. on March 10, 2009 at 4:22 pm

    One point in favor of your suggestion, Adam, is that most people around the world and in the U.S. in particular seem to believe that adultery is, in almost all cases, 1) morally wrong and 2) harmful to another person (aside from polls, one can take a look at what the trashiest of reality shows and tabloids invariably gasp at). This is something we miss when we’re bemoaning the decadence of modern society and noticing that quite a few people do committ adultery. It’s a sadly common sin that people (not just Mormons) are nevertheless still ashamed about.

    I tend to think we’re currently overloaded with criminal law in the U.S., but civil liability might be a good idea. It also might be easier to put into law in the strange current environment of family law.

  37. Adam Greenwood on March 10, 2009 at 4:26 pm

    The Andrew Jacksons of the world are still going to believe that “the law affords no remedy for such outrages that can satisfy the feelings of a true man,” but I take your point.

    Jeremiah J.,

    I think the law will be held in greater respect if it shows some awareness of the universal moral sentiments of mankind, so to speak.

  38. Adam Greenwood on March 10, 2009 at 4:27 pm

    that’s a bad justification for a worse comment. If that’s a fair sample of what you have to contribute to this thread, please bow out.

  39. Marc on March 10, 2009 at 5:05 pm

    I’m far from convinced that criminalizing (or enforcing long dormant laws on) adultery again would be worth the cost. I think the possibility of unintended consequences is actually quite high. It would probably push a lot more people away from marriage into common law type living arrangements (unless you’re also proposing resurrecting fornication laws governing sex outside of marriage along side the adultery laws). Ultimately, I think efforts along these lines could backfire and lessen the importance of marriage in society, making it an even more “antiquated” institution in a lot more peoples’ eyes. Regardless of whether one thinks in the abstract that having enforced adultery laws on the books is a good idea, turning back the clock to try to achieve that ideal is a whole other can of worms.

    That said, Elder Oaks has made several comments in relation to same-gender attraction that are pretty relevant to this discussion. In particular, he seems to argue that having laws governing certain behavior on the books is worthwhile even if those laws aren’t enforced or are unenforceable.

    (1) “In addition, if people want to legalize a particular relationship, we need to be careful if that kind of relationship has been disapproved for millennia. Suddenly there’s a call to legalize it so they can feel better about themselves. That argument proves a little too much. Suppose a person is making a living in some illegal behavior, but feels uneasy about it. (He may be a professional thief or he may be selling a service that is illegal, or whatever it may be.) Do we go out and legalize his behavior because he’s being discriminated against in his occupational choices or because he doesn’t feel well about what he’s doing and he wants a ‘feel good’ example, or he wants his behavior legitimized in the eyes of society or his family? I think the answer is that we do not legalize behavior for those reasons unless they are very persuasive reasons brought forward to make a change in the current situation.”

    (2) “Law has at least two roles: one is to define and regulate the limits of acceptable behavior. The other is to teach principles for individuals to make individual choices. The law declares unacceptable some things that are simply not enforceable, and there’s no prosecutor who tries to enforce them. We refer to that as the teaching function of the law.”

    (Same Gender Attraction)

  40. Frank McIntyre on March 10, 2009 at 5:21 pm

    Kaimi, Adam is not endorsing killng people for adultery. You might want to confirm his view before you jump on him for being non-scriptural. Instead, you’ve assumed something untrue and run with it.

    Adam, Kaimi is taking your opening graf as endorsing capital punishment for adultery, you should probably explain to him that you don’t. In small clear words.

    On the other hand, maybe you, for some bizarre reason, do. In which case, you can tell him that.

    Both of you might want to try reading each other’s comments. It will make for a better conversation.

  41. Raymond Takashi Swenson on March 10, 2009 at 5:29 pm

    First, adultery IS still prosecuted in the armed forces, particularly when either the offended spouse or the outside paramour are also members of the military so that the anger and disruption affects good order and discipline and the ability of people to work together in dangerous situations using deadly implements. It is especially so when one of the adulterers is superior in rank to the other, so that it becomes an issue of potential abuse of authority and implied coercion by the superior.

    Even apart from criminal enforcement under the Uniform Code of Military Justice, sexual relationships with subordinates can lead to discharge and dismissal. The immediate predecessor to the current Judge Advocate General of the Air Force was forced to resign because of such activities. (You will note that this is a higher standard of behavior than the Democratic Party expects of the Commander in Chief.)

    Second, on the harshness of punishments for adultery, I would recall the 1851 trial of Howard Egan, the first prosecution for homicide in Utah Territory. Egan had served as a bodyguard for Brigham Young and a pathfinder for trails from Salt Lake City to outlying settlements. During one of his absences, his wife became involved with another man and bore a child. Egan learned the man was on the trail headed west toward Salt Lake, met him there, and shot him dead.

    Egan was defended at the trial by apostle George A. Smith (a transcript was published in the Deseret News). The trial was held before a jury, with Judge Zerubbabel Snow (the onlY LDS Federal judge) presiding. Smith argued in “plain mountain English” that it might be adequate in the England of “old and rotten governments” for aggrieved spouses to sue for money damages in such a case, but that “plain mountain men” like the members of the jury (who had only moved to Utah from the flatlands of Illinois a few years before) had “a principle of mountain common law” with a more explicit sense of justice that valued the virtue of its women more highly, and that “no man can seduce the wife of another without endangering his own life”. “The principle, the only one that beats and throbs through the heart of the entire inhabitants of this Territory, is simply this: The man who seduces his neighbor’s wife must die, and her nearest relative must kill him!”

    Smith went on “When the news reached Iron County, that Egans’s wife had been seduced by Monroe, the universal conclusion was ‘there has to be another execution;’ and if Howard Egan has not killed that man, he would have been damned by the community for ever, and could not have lived peaceably, without the frown of every man.” After confessing modestly that it was his first trial, then pointing out that Egan was on trial “For the justified killing of a hyena, that entered his sheets, seduced his wife, and introduced a monster into his family! . . . in accordance with the established principles of justice known in these mountains. . . . I plead for the honor and rights of this whole people. . . .[W]ere I a juryman, I would lie in the jury room until the worlms should draw me through the key-hole, before I would give in my verdict to hang a man for doing an act of justice, for the neglect of which he would have been damned in the eyes of this whole community.”

    The jury found Egan not guilty, but explained its finding on the grounds that it was uncertain whether the event took place within the territorial boundaries of Utah Territory, and so concluded that there was a reasonable doubt as to the very jurisdiction of the court. Egan continued to work for Brigham as a bodyguard.

    The closing argument by Smith and the instructions to the jury by Snow were published in Volume 1 of the Journal of Discourses, pages 95 to 100, which can be viewed on the BYU library web page. It is troubling that the proceedings of a murder trial were judged to be worth publishing to the Saints in Britain, especially because, in August and September of 1857, George A. Smith traveled through Cedar City and other southern settlements, rallying the people to stand against the approaching US Army. One of the ways that John D. Lee and others who led the Mountain Meadows Massacre falsely characterized the Arkansas immigrants was by labeling the female members of the group “prostitutes”. Sadly, George A. Smith had established the precedent there in Iron County that sexual sinners were subject to vigilante “mountain justice” of violent death, and that no righteous jury would convict them for doing so.

    I do not recall seeing this point made in the recent book by Turley, et al., but in any case, it provides insight into the kind of rationalization that was exercised so tragically to justify homicide in the spirit of summary execution of people who did not deserve to live.

  42. Kaimi on March 10, 2009 at 5:36 pm


    I’m aware that Adam isn’t actually endorsing killing people. However, he’s clearly endorsing the underlying sentiment.

    That is, his argument appears to be this:

    “There is a strong punitive impulse, among many people, towards adulterers. See, e.g., my Navajo friend. The law ought to more clearly reflect that punitive impulse. Hence suggestions about civil law, tort, etc.”

    Isn’t that the basic argument here, Adam? (Lines like “Adultery is something that matters a lot to people. It hits them in the gut.” suggest this reading to me.)

    I suppose this view is compatible with scripture to the extent that one reads John 8 as being solely about *remedy* — that is, go ahead and unleash your punitive impulses on adulterers, just try not to kill them.

    On the other hand, I think that the much more reasonable reading is that Christ is condemning the punitive impulse itself, not just the draconian remedy. He doesn’t say, “don’t stone her, just flog her instead” or any other such. He literally lets the woman go without any punishment at all, except an admonition to sin no more.

    Adam has suggested (drawing on his friend’s example) that there is a human nature impulse to punishing adulterers. (He labels this “the universal moral sentiments of mankind”). I think that’s right — it’s human nature to want to punish serious violators of community norms, including adulterers. It’s also part of the natural man which we should not be encouraging or aggrandizing.

    The only scriptural example that we have where Jesus deals with an adulterer is one in which Jesus personally takes steps that result in the adulterer receiving *no* official punishment at all.

  43. Frank McIntyre on March 10, 2009 at 5:47 pm


    That is a much more cogent comment than your earlier ones.

    Here is an alternate take:

    The appeal to “the gut” and “universal moral sentiment” is not an appeal to punitive damage, but rather that its universality means it is not merely a religious impulse, but a universal impulse, and so perhaps a valid place for law.

    Thus one may wish to make a law that recognizes the damages done by adultery, mush as we make laws that recognize other forms of damages. You seem to be saying we should not be in the vengeance business, but I’m sure you could come up with other reasons for punishing behaviors besides vengeance. What with you being a law professor and all.

  44. Timj on March 10, 2009 at 5:48 pm

    I think Marc’s right when he says this could be bad public policy. If sleeping around while you’re married results in you getting sued or possibly losing custody of the kids, it’s another incentive to not get officially married.
    On the other hand, I see a big potential here for increasing the ranks of family lawyers…

  45. Ray on March 10, 2009 at 6:11 pm

    I can think of many reasons why someone who commits adultery could be not only a better parent than the one who doesn’t but also why the adultery could be seen as every bit as much the fault of the non-adulterer as the fault of the adulterer. Ultimately, it is the fault of the person who cheats, but there are so many potential mitigating circumstances that making it a disproportionate influence on custody would be a bad idea. I say use it how it generally is used now – as an important factor, but only as an important factor.

    I’ve barely started my popcorn, and the fight already is over?

  46. Amanda on March 10, 2009 at 7:34 pm

    So if the military still prosecutes adulterers, does that mean that Bill Clinton, as Commander-In-Chief, should have fallen in that category?

  47. Adam Greenwood on March 10, 2009 at 10:14 pm

    Adam, Kaimi is taking your opening graf as endorsing capital punishment for adultery, you should probably explain to him that you don’t. In small clear words.

    On the other hand, maybe you, for some bizarre reason, do. In which case, you can tell him that.

    I only favor capital punishment for adultery if its being done for some bizarre reason (the capital punishment or the adultery, I don’t care which).

    I do not favor capital punishment for hysterical accusations based on bizarre mis-readings (let he who is without sin cast the first stone). KW can breathe easy. Probably the worst thing I’ll do is what I’ve already done, to wit, ask him to bow out of the thread.

    I know that Christian anarchists and quietists read the New Testament to say that Christ is forbidding secular law, or punishment for the violations thereof, but that doesn’t make sense to me. I don’t know anybody who reads the New Testament to say that we can outlaw stuff and punish it, unless we feel the stuff we’re outlawing is wrong. I am willing to listen to arguments to the contrary, from persons who have not already demonstrated in this thread a certain capacity for indignant spluttering.*

    *Yes, I realize this excludes me and KW. We’ll just have to live with that.

  48. Adam Greenwood on March 10, 2009 at 10:28 pm

    Andrew Jackson would be proud.

    Marc, et al.,
    I’m sceptical that when contemplating marriage most would assign a high value to the likelihood that they would commit adultery. If they do, perhaps they shouldn’t be getting married. And while adultery laws raise the costs of getting married (in that you can’t just mouth your vows, you have to take them at least a little bit seriously), they also reduce the costs of getting married, in that it makes it more likely that your spouse will be faithful to you. No one wants their spouse to cheat on them, and no one wants to feel that their spouse can cheat, break the marriage, and still get the kids and the house. That really makes marriage look like a bad deal.

    I’m gonna go out on a limb here and say that adultery is almost always principally the fault of the adulterer. We are commanded to be as gentle as doves, true, so its good to be charitable–but we’re also supposed to be as wise as serpents.

    Amanda, RTS,
    Under the principle of civilian control of the armed forces, the Commander-in-Chief is very properly not subject to military discipline. It was unfortunately predictable that Congress/the Democrats would be widely remembered as condoning President Clinton’s adultery in office, but in fact they did condemn it, they just refused to sanction it.

  49. hcl on March 10, 2009 at 10:50 pm

    While the military still has adultery on the books as a crime punishable under the UCMJ (max punishment one year confinement and/or Dishonorable Discharge), in my 7 years as a JAG, I have NEVER seen it prosecuted at a court-martial. I just asked my lead paralegal (who has 17 years in the service), and she has never seen it prosecuted either. It could be that our standards have slipped, but I think it has more to do with the elements of the Adultery crime; it is EXTREMELY difficult to show that folks fooling around negatively affects “good order and discipline.” It happens all the time.

    As to the Air Force senior lawyer who resigned…well, some would argue that he got off easy! Sure he lost a star, but he didn’t go to a court martial to risk jail time or being dismissed from the service where he would have lost his pension. Different spanks for different ranks? Of course, I heard that the Air Force was doing damage control. He was a senior officer and this was not his first incident of infidelity within the JAG community. As the rumor goes, if the string was pulled more, it might call into questions certain promotions and positions of certain female officers.

    Bill Clinton was not subject to the UCMJ as president.

  50. HeidiAnn on March 10, 2009 at 10:57 pm

    I didn’t read all the comments, but from what I did read it’s a very interesting discussion. Forgive me if I repeat. Another scriptural example comes to mind, (paraphrasing) “If a man shall put away his wife, saving for the cause of fornication, he shall cause her to commit adultery,” or something like that. Does that change anything?

  51. Imperial LDS on March 10, 2009 at 11:43 pm

    It will be a long time before we see adultery get taking seriously in the courts.

    However, what I find fascinating is a trend lately for people to win big lawsuits that they got a STD or AIDS passed to them without warning them ahead of the time that there partner (or one night stand) had knowledge that they carried that disease.

  52. Adam Greenwood on March 11, 2009 at 5:32 am

    Imperial LDS is a great moniker. Does it mean anything?

    Those are curious lawsuits. In my opinion, having a one night stand or failing to use or demand condom use should be contributory or comparative negligence, diminishing recovery. Probably it is, I’m just not that familiar with venereal disease torts.

  53. MAC on March 11, 2009 at 5:54 am

    While I dislike the idea of no-fault divorce, I really don’t consider the legality of adultery as the problem. What we really need to bring back is the social stigma.

  54. Adam Greenwood on March 11, 2009 at 7:05 am

    I would argue that law and stigma go hand in hand. Like George Washington said, honor and interest must be combined.

  55. SilverRain on March 11, 2009 at 8:28 am

    Question for all you lawyers out there: just out of curiosity, where would “emotional affairs” factor into all of this?

  56. Kaimi on March 11, 2009 at 11:00 am

    Question for all you lawyers out there: just out of curiosity, where would “emotional affairs” factor into all of this?

    Adultery = dragged to death by horses. Emotional affairs = nibbled to death by ducks. :P

    Actually, SR, that’s a good question. Most polls show that men are more concerned with physical fidelity (not having-sex with someone else) while women are more concerned with emotional fidelity (not falling in love with someone else).

    Law tends to define adultery as not-having-sex, which probably undervalues womens’ concerns. It’s definitely an easier test to administer — the not-falling-in-love test would be hell to try to show in court, though it could probably be done in some cases (if there are letters that say “I love you” or the like).

    And of course, Jesus famously equated the two in the sermon on the mount — stating that it’s not only the not-having-sex that matters, but also the not-falling-in-love.

  57. Adam Greenwood on March 11, 2009 at 1:20 pm
  58. Kaimi on March 11, 2009 at 2:39 pm

    There are other interesting legal quirks.

    For instance, some cases may fit the legal definition of adultery, while not rising to the usual level of moral offense.

    One friend is in the middle of a divorce. Her husband is moved out, permanently; the divorce is still in process, and won’t be finalized for another few months. This particular friend isn’t looking to date right now; but if she were, I don’t think that would be a moral wrong. The marriage is ended.

    The issue is more acute in jurisdictions where divorce becomes effectively impossible. We had families in Guatemala who were, through legal quirks, difficult or impossible to divorce. Some of them were still legally married to a spouse who they lived with at age sixteen, and hadn’t seen for decades; they had been with their current (non-)spouse for decades, raised kids together, and so on.

    On the flip side, other cases may not fit the legal definition of adultery, but still be a moral wrong. Someone may be living with a longtime partner in a mutually understood, committed relationship (possibly with children), but not actually married. If that person cheats, that seems to be a moral wrong along the same lines as adultery, even if it doesn’t fit the legal definition.

    (Another wrinkle there: Depending on whether the couple is living in a common-law marriage jurisdiction or not, the exact same set of facts could lead to legally-defined adultery in one case, and not in the other.)

  59. Adam Greenwood on March 11, 2009 at 2:56 pm

    I think at least Volokh’s objections are serious ones that need to be taken into account.

  60. Bookslinger on March 11, 2009 at 10:39 pm

    Adam: “I’m sceptical that when contemplating marriage most would assign a high value to the likelihood that they would commit adultery.”

    It’s my understanding that most (over 50% of ) urban men in South America expect to have a mistress on the side.

    I’m gonna go out on a limb here and say that adultery is almost always principally the fault of the adulterer.”

    I used to be of the same opinion until I realized how widespread abuse and emotional cruelty is. Not only widespread, but at times extreme in intensity. Adultery on the part of a severely abused (either physical or the mental/emotional kind of abuse) wife is not necessarily a matter of lust or failure to control sexual desires.

    In such a case, the sexual acts of adultery may not be about sex at all. And the cruelty committed against the “adulterous” spouse (prior to the adultery) may make the sin of adultery pale in comparison.

  61. NOYDMB1234 on March 11, 2009 at 11:05 pm

    According to “Misquoting Jesus” the entire story was added post gospel-writing. I would have expected one of the “elite who know better than the brethren on Prop 8″ to know something so simple as textual criticism on his proof-texts.

    [Ed. - Cool it, me hearty. I've asked KW to back out of the thread, so parting potshots are bad form.]

  62. SilverRain on March 12, 2009 at 8:33 am

    Kaimi—Thank you for your answer. It seems like it would be hard to prove a physical affair in court, absent any documentation, and even harder for an emotional one.

    More curiosity: what legally constitutes an emotional affair, anyways, or do the courts ignore that completely? Is an emotional affair actually falling in love, or is it simply confiding emotional difficulty in someone? Especially with the current cultural shift regarding gender and sex, how could lines be drawn between confiding in someone as a friend, and confiding in someone as a lover, if there is no sex involved?

    Would that potentially mean that a married person must be afraid to associate too closely with anyone of either gender to avoid accusations of an emotional affair?

    Sorry about all the questions, I’m just completely ignorant on how the legal system deals with these sorts of things, and I’ve never thought about it before.

  63. SilverRain on March 12, 2009 at 8:36 am

    Also, as Bookslinger pointed out, whether or not a person considers it right, I imagine is true that adultery can be more about seeking safety or approval than about sex or even love. I know women who use sex to feel either emotionally or physically safe, and I assume they confuse love with feelings of (at least relative) safety.

    For some, I would also conjecture that adultery can be about needing to exert some kind of power over their lives.

  64. Adam Greenwood on March 12, 2009 at 10:41 am

    Silver Rain,
    the old tort of alienation of affection could concievably apply to an ‘emotional affair,’ though I don’t think anyone ever brought that kind of claim. I don’t think there’s any law that would potentially cover this now.

  65. Adam Greenwood on March 12, 2009 at 10:42 am

    it doesn’t matter what the adultery is about.

  66. Alison Moore Smith on March 12, 2009 at 10:57 am

    I’m with Adam on that. The command not to commit adultery isn’t conditional based on the motive.

    And the cruelty committed against the “adulterous” spouse (prior to the adultery) may make the sin of adultery pale in comparison.

    Similarly, I don’t think comparative sin is really a defense. That sounds like what my kids say when they get in trouble. Passing off what they did, based on what their sibling did first.

    As I say to my kids, “I’m not talking to [maligned sibling]. I’m talking to you. I’ll address [maligned sibling's] with [maligned sibling].”

    I suspect that choosing to commit adultery is a choice…even if someone else does something worse.

  67. Bookslinger on March 12, 2009 at 11:21 am

    Adam: as far as deciding whether the law was broken or not, you are correct that it doesn’t matter what the adultery is about.

    However, in the area of judgements and punishments, which your original post and comments delve into, I think it matters a great deal, along with motivations, mitigating factors, and even greater sins/crimes on the part of the spouse making the accusation.

    I used to be of the opinion “why doesn’t she just leave him?” in regards to abused wives who go on to commit adultery. But as I learned more about human nature, and the dynamics of marital and family abuse, I realized it’s much more complicated, and that “just leaving” is not that simple, and in the eyes of the abuse victim, often impossible.

    I’ve met a few severely abusive men who’ve made me think that their being cuckolded would be fitting.

    On a related note about your Navajo friend’s statement, the death penalty for moral transgressions is not without precedent among aboriginal Americans. According to Garcilaso de la Vega, (one of the last of Incan royalty, and who was sent to Spain for education), in his book “The Incas“, their punishment for homosexual acts was burning at the stake.

    If you feel an affinity for American Indians, I recommend reading the book.

  68. Bookslinger on March 12, 2009 at 11:38 am

    Allison, the situations I’m attempting to describe don’t fall into the “he did it first” category, or are about retribution.

    I sincerely regret not taking a fellow Melchizedek priesthood holder to the Stake President and charging him with spousal abuse back in the early 1980′s. I didn’t understand the depths and depravity and life-long wounds of emotional/mental cruelty. A couple years ago, I learned he charged his wife with adultery and divorced her. In the meantime, I had gained a little more knowledge of human nature, and how to read people and situations, and I had learned how to interpret and understand the abusive event that I witnessed.

    That he wouldn’t “let” her leave until she gave him ammunition to make her the “bad guy”, now makes perfect sense in light of what I witnessed long ago. Not that that was her conscious motive or reasoning.

    But there is such a thing as “driving your spouse into the arms of another.” I’ve seen how it can be done. And in extremely cruel cases, my sympathies are with the victim of the abuse, even if she (or he) goes on to commit the sin/crime of adultery.

  69. Adam Greenwood on March 12, 2009 at 2:43 pm
  70. Bookslinger on March 12, 2009 at 3:10 pm

    Alison/Adam, and I concede that the situations I’m trying to describe are likely only a small percentage of all cases of infidelity.


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