ADULTERY
Voluntary sexual relations between an individual
who is married and someone who is not the individual’s
spouse.
Adultery is viewed by the law in many jurisdictions
as an offense injurious to public morals
and a mistreatment of the marriage relationship.
Statutes attempt to discourage adultery by
making such behavior punishable as a crime and
by allowing a blameless party to obtain a
DIVORCE against an adulterous spouse.
Although adultery has been historically
regarded as a legal wrong, it has not always been
considered a crime. In Europe during the fifteenth
and sixteenth centuries, adultery was
punishable solely in courts created by the church
to impose good morals. In the ecclesiastical
courts, adultery was any act of sexual intercourse
by a married person with someone not
his or her spouse. The act was considered
wrongful regardless of whether the other person
was married. At COMMON LAW, adultery was
wrongful intercourse between a married woman
and any man other than her husband.
Criminal Laws
Several state legislatures statutorily prohibit
adultery as a crime. Under some statutes, both
parties to an adulterous relationship are guilty of
a crime if either of them is married to someone
else. Other statutes provide that the act is criminal
only if the woman is married.
Under the law of many states, a single act of
adultery constitutes a crime, whereas in others,
there must be an ongoing and notorious relationship.
The punishment set by statute may be
greater for an individual who engages in
repeated acts of adultery than for one who commits
an isolated act.
Defenses An individual who has been
charged with committing adultery may have a
valid legal defense, such as the failure or physical
incapacity to consummate the sex act.
A woman is not guilty of adultery if the sex
act resulted from rape. Some states recognize
ignorance of the accused regarding the marital
status of his or her sexual partner as a defense. In
a few jurisdictions only the married party can be
prosecuted for adultery. If the other party to the
relationship is not married, he or she may be
prosecuted for fornication instead of adultery.
Initiation of Criminal Proceedings Under
some statutes, a prosecution for adultery can be
brought only by the spouse of the accused person
although technically the action is initiated in
the name of the state. Other states provide that a
husband or wife is precluded from commencing
prosecution for adultery since those states have
laws that prohibit a husband or wife from testifying
against his or her spouse. In such states, a
complaint can be filed by a husband or wife
against the adulterous spouse’s lover.
Evidence Customary rules prescribe the
types of evidence that can be offered to prove
guilt or innocence. There must be a showing by
the prosecutor that the accused party and
another named party had sexual relations.
Depending on state statutes, the prosecutor
must show that either one or both parties to the
adultery were wed to someone else at the time of
their relationship.
Evidence that the defendant had the chance
to have sexual relations coupled with a desire, or
opportunity and inclination, might be sufficient
to prove guilt. Photographs or testimony of a
witness who observed the couple having sexual
intercourse is not necessary. The fact that a married
woman accused of adultery became pregnant
during a time when her husband was
absent might be admissible to demonstrate that
someone other than her spouse had the opportunity
of engaging in illicit sex with her.
Letters in which the accused parties have
written about their amorous feelings or clandestine
encounters may be introduced in court to
support the assertion that the parties had the
inclination to engage in sexual relations. Character
evidence indicating the good or bad reputation
of each party may be brought before the
jury. Evidence of a woman’s sexual relationships
with men other than the party to the adultery
generally cannot be used; however, if her reputation
as a prostitute can be demonstrated, it may
be offered as evidence.
Suspicious activities and incriminating circumstances
may be offered as CIRCUMSTANTIAL
EVIDENCE.
Enforcement of Statutes
Although the District of Columbia and
approximately half of the states continue to have
laws on the books criminalizing adultery, these
laws are rarely invoked. Traditionally, states
advanced three goals in support of their adultery
laws: (1) the prevention of disease and illegitimate
children; (2) the preservation of the institution
of marriage; and (3) the safeguarding of
general community morals.
Courts in the jurisdictions still prohibiting
adultery have openly questioned whether adultery
laws in fact serve these goals. The Florida
Supreme Court, for example, found that adultery
statutes bear no rational, much less compelling,
relationship to disease prevention. The
court said that the risk of contracting disease is
already a greater deterrent to extra-marital sex
than criminal punishment. The court also
noted that the fear of prosecution prevents
infected people from voluntarily seeking treatment.
Purvis v. State, 377 So. 2d 674, 677
(Fla.1979).
At the same time, many prosecutors began
to realize that once the act of adultery is committed,
the harm to the marriage is for the most
part complete, especially if the infidelity is disclosed
or discovered. In other words, after a
spouse has been unfaithful, there is little the
judicial system can offer to undo the act and
reverse the damage. Thus, prosecutors have
increasingly questioned whether prosecuting the
adulterer will do much if anything to preserve
the marriage.
Finally, judges, prosecutors, and other state
officials have increasingly realized that prosecutions
for adultery have had little practical effect
in “safeguarding the community morals.” Opinion
polls consistently show that significant
numbers of spouses admit to cheating on their
partners during marriage. In light of the growing
evidence that adultery laws no longer serve
their three underlying purposes, most state
prosecutors have made a conscious decision
against wasting their scarce resources on prosecuting
alleged adulterers.
In states that still have adultery laws on the
books, but have failed to prosecute anyone
under them recently, courts have ruled that the
mere lack of prosecution under the adultery
statute does not result in that statute becoming
invalid or judicially unenforceable. Courts have
also rejected the argument that prosecutions for
adultery are inconsistent with the right to privacy
guaranteed by state and federal constitutions.
Commonwealth v. Stowell, 389 Mass 171,
449 NE2d 357 (Mass 1983).
As a Defense
Occasionally, adultery has been successfully
asserted as a defense to the crime of murder by
an individual charged with killing his or her
spouse’s lover. Courts are loath, however, to
excuse the heinous crime of murder on the
ground that the accused party was agitated
about a spouse’s adulterous activities. However,
individuals who kill their spouse after catching
him or her committing adultery may be able to
rely on a heat of passion defense, and thereby
face prosecution or conviction for MANSLAUGHTER,
rather than first degree murder.
Divorce
Based on the state’s interest in the marital
status of its residents, all legislatures had traditionally
assigned statutes enumerating the
grounds on which a divorce would be granted.
These grounds, listed separately in the laws of each jurisdiction, generally included desertion, nonsupport, and adultery.
The basis of adultery as a ground for divorce
has been discussed in various cases. There is an
overriding public policy in favor of preserving
the sanctity of marital relationships and family
unity and a fear that adultery will serve to
undermine these societal objectives.
Late twentieth-century changes in divorce
laws, primarily the enactment of no-fault
divorce statutes in many states, have made it easier
for couples seeking divorce to end their marriages
without having to prove adultery or any
other ground. In the past many unhappy couples
resorted to trickery to attempt to obtain a
divorce through staging the discovery of
allegedly adulterous conduct.
Nonetheless, adultery still may be relevant to divorce proceedings in which ALIMONY is an issue. In twenty-seven states plus Puerto Rico
and the District of Columbia, fault is one factor
which courts will consider in deciding whether
to award alimony. If the spouse seeking an
alimony award committed adultery, he or she
will have a more difficult time convincing the
court that he or she is entitled to alimony than if
he or she had not been unfaithful.
FURTHER READINGS
Friedman, Lawrence M. 2000. “A Dead Language: Divorce
Law and Practice Before No-fault.” Virginia Law Review
86 (October): 1497–1536.
Haggard, Melissa Ash. 1999. “Adultery: A Comparison of
Military Law and State Law and the Controversy This
Causes Under Our Constitution and Criminal Justice
System.” Brandeis Law Journal 37 (spring): 469–83.
CROSS-REFERENCES
Circumstantial Evidence; Common Law; Divorce; Ecclesiastical
Courts; Family Law; Fornication; Husband and Wife;
Marriage; Privacy; Rape.
