Adultery: Infidelity and the Law
Courtesy Harvard University Press

The law governing adultery has an unbecoming history, marked by intrusive inquiries, inconsistent application, and class, racial, and gender bias. Society’s double standard was reflected and reinforced by legal prohibitions. Unfaithful wives were treated more harshly than husbands and expected to overlook their spouses’ indiscretions. Where adultery was the primary ground for divorce, fabricated narratives and perjured testimony were widespread.

As sexual attitudes have grown more liberal, laws governing adultery have grown more anachronistic. In the United States, although twenty-one states retain criminal prohibitions, they are almost never enforced, and when they are, the rationales are scarcely compelling. Civil damage awards for criminal conversation and alienation of affection are intermittent and idiosyncratic. Dismissals from employment and discharges from the military are a costly and dubious way to protect legitimate interests. In family matters, marital infidelity bears no necessary relationship to parental fitness or need for alimony. Neither is it a good measure of immigrants’ moral fitness for citizenship. In politics, context matters, but fidelity in marriage is generally not a good predictor of effectiveness in office.

In Islamic countries, as Chapter 7 notes, laws against adultery discriminate against women and penalties are sometimes draconian: flogging, stoning, and hanging. Even where laws are gender neutral on their face, their enforcement is directed overwhelmingly against women and girls. In some countries, even rape can constitute adultery.

What would a more defensible legal regime look like? In the United States, legislatures would repeal criminal prohibitions on adultery and abolish civil damages actions for criminal conversation and alienation of affection. Given the political obstacles to reform, courts should be prepared to strike down such statutes in the absence of legislative reform. In light of individuals’ strong interests in sexual privacy, and these laws’ demonstrated ineffectiveness in deterring adultery, their retention serves no legitimate state interest. For similar reasons, the military should replace sweeping prohibitions on adultery with more targeted bans on conduct that poses a serious threat to unit cohesion, such as sexual relations between individuals in the same chain of command. Existing rules on fraternization may be sufficient to deal with most legitimate concerns.

Adultery should also figure less often in other contexts. Marital infidelity should not affect divorcing couples’ financial or custody awards, except in the rare cases in which it demonstrably compromises children’s interests. In employment law, dismissals or demotions for adultery should be allowed only where employee job performance or the function of the organization is in fact affected. Vague invocations of reputational concerns or department morale should not be sufficient. Nor should adultery serve to reduce charges of murder; infidelity should not be a license to kill. In political contexts, extramarital affairs should be relevant only when the position involves moral leadership, and the behavior involves gross recklessness, hypocrisy, financial improprieties, prostitution, or other serious misconduct.

“Adultery,” said Vladimir Nabokov, “is a most conventional way to rise above the conventional.” But it also challenges the conventional and invites us to rethink assumptions about sexual exclusivity. The evils traditionally associated with adultery stem from deceit and betrayal. But adultery practiced openly, with the consent of all concerned, stands on different footing. The limited evidence available on open marriages and polyamorous relationships suggests that they compare favorably with monogamy in terms of party satisfaction and outcomes for children. …

How would such a legal regime affect the institution of marriage? If supporters of monogamy are correct, and it is the most fulfilling choice, then marriage has little to fear from legalizing alternatives. These will remain on the fringes of society, and few will choose them. By contrast, if polyamorists are correct, and love need not be exclusive to be the foundation of a stable union, then some couples’ lives will be enhanced by expanded opportunities for nontraditional living arrangements.

The law, said Supreme Court Justice Oliver Wendell Holmes, is the witness “of our moral life. Its history is the history of the moral development of the race.” That development calls for more tolerance for alternative lifestyles and the elimination of legal penalties for adultery. SL

Adapted from Adultery: Infidelity and the Law by Deborah L. Rhode, published by Harvard University Press. Copyright © 2016 Deborah L. Rhode. Used by permission. All rights reserved.