Gender, Sexuality and the
Law: Adultery Part II
Harper Jean Tobin
Contributing Writer
Previously in this column I discussed whether adultery is
protected by the constitutional rights of association and privacy. As I
mentioned in the prior column, jurists and legal scholars have distinguished
adultery from "morals" offenses such as sodomy and fornication on the
grounds that adultery involves betrayal and causes real emotional and other
harms. Nevertheless, it is private, consensual behavior. How to square the
"keep the government out of our bedrooms" approach to privacy rights
exemplified in Lawrence v. Texas with legitimate concerns about the
harms caused by adultery? In order to begin to answer this question, I think it
is necessary to define what adultery is and why it is harmful.
Adultery, put simply, is extramarital sex. While many
feel that extramarital sex is wrong because it violates the Seventh Commandment
and society's predominant sexual norms, it is clear that the law is moving away
from enforcing private sexual mores and religious beliefs.
Why else, then, do we find extramarital sex
objectionable? Simply put, it must be because it is a violation of the
expectation -- often made explicit in wedding vows ("forsaking all
others") -- that lasting monogamy is an important component of marriage.
To many, perhaps most spouses, this expectation has great emotional import, and
violations of it can be tremendously painful.
There are, however, many ways to hurt or disappoint one's
spouse. Other than adultery, those things which the law has generally concerned
itself with, such as physical or verbal abuse, are more or less inherently
harmful behaviors that do not fall within protected spheres of personal
liberty. If someone is upset by a spouse's hobbies, friendships, political
activities, visits with family, or taste in books, they can hardly take these
matters to court. Marriages are legal relationships, and they are social
contracts, yet they are not legal contracts; we cannot sue for breach if we
feel we are not being loved, honored and cherished pursuant to our matrimonial
vows.
But, arguably, sex is different. While what two
consenting adults do behind closed doors may not be any of the neighbors'
business, some feminist scholars have argued that in the context of marriage,
an exclusive focus on the consent of participating parties is misleading. After
all, the right to choose one's own
sexual relationships arguably involves the right to decide whether or not they
will be monogamous, and secret affairs deprive spouses of that right.
Extramarital
sex, then, is harmful and unethical because it is deceptive, promise-breaking,
and deprives spouses of an important aspect of sexual self-determination. Most
of the time, that is. Some social scientific evidence suggests that a
substantial minority of married couples have some form of mutual agreement
allowing for extramarital sex. (While estimates are contested, there are
probably at least as many heterosexual couples in some form of "open"
marriage as there are gay and lesbian couples, period.) For these couples,
adulterous behavior is arguably neither a personal betrayal nor any of
society’s business. On the other hand, the harm of outside sex which is furtive
and contrary to a partner's expectations is probably just as great for members
of long-term, unmarried couples as it is for cuckolded spouses.
Having defined the harm of adultery in this way, how
should the law treat it? Criminal law seems an ill-suited and probably
unconstitutional mechanism for controlling what is essentially a personal
slight. We used to recognize torts such as "criminal conversation"
and "alienation of affections," but these applied only to the
paramour and have largely been abolished anyway. Traditionally, adultery has
played a large role in divorce law, both as a grounds for divorce and a factor
in dividing up marital property. But nowadays most jurisdictions don't consider
non-economic bad behavior in dealing with marital property, and the number of
states that require grounds for divorce is shrinking.
Arguably, adultery is a private matter best left out of
the courts; but if we insist on legal remedies, they should focus not on the
fact of extramarital sex itself, but on the real harms involved. If one exposes
a spouse to a sexually transmitted infection because of unprotected adulterous
sex, the exposure and not the adultery should be the cause of action.
Similarly, some states allow claims of intentional infliction of emotional
distress (IIED) in cases of adultery. Under this tort, the wrongful conduct has
to be "outrageous," the distress severe, and the infliction of
distress intentional, knowing or reckless. This remedy would not apply when
there has been an open marriage, and the high standard of proof ought to deter
all but the most serious claims.
A modest proposal, then: repeal criminal sanctions and
prohibit discrimination on the basis of adultery (and any other private, legal
sexual behavior); and if (ex-)spouses are harmed enough (or simply craven
enough) to drag one another into court over adultery, let it be on a tort claim
narrowly tailored to the harm caused.
Comments? Topic ideas? Write to me at hjt3@case.edu.