Adultery

Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Judaism and Islam. Adultery is viewed by many jurisdictions as offensive to public morals, undermining the marriage relationship.

Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalising adultery.

However, even in jurisdictions that have decriminalised adultery, it may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model.

International organizations have called for the decriminalisation of adultery, especially in the light of several high-profile stoning cases that have occurred in some countries. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakirana, has stated that: "Adultery must not be classified as a criminal offence at all". A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offence violates women’s human rights".

In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning. There are fifteen countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia. Most countries that criminalize adultery are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines, and several U.S. states. In some jurisdictions, having sexual relations with the king's wife or the wife of his eldest son constitutes treason.

Overview

The term ''adultery'' refers to sexual acts between a married person and someone who is not that person's spouse. It may arise in a number of contexts. In criminal law, adultery was a criminal offence in many countries in the past, and is still a crime in some countries today. In family law, adultery may be a ground for divorce, with the legal definition of adultery being "physical contact with an alien and unlawful organ", while in some countries today, adultery is not in itself grounds for divorce. Extramarital sexual acts not fitting this definition are not "adultery" though they may constitute "unreasonable behavior", also a ground of divorce.

Another issue is the issue of paternity of a child. The application of the term to the act appears to arise from the idea that "criminal intercourse with a married woman ... tended to adulterate the issue hildrenof an innocent husband ... and to expose him to support and provide for another man's hildren. Thus, the "purity" of the children of a marriage is corrupted, and the inheritance is altered.

In archaic law, there was a common law tort of criminal conversation arising from adultery, "conversation" being an archaic euphemism for sexual intercourse. It was a tort action brought by a husband against a third party (“the other man”) who interfered with the marriage relationship.

Some adultery laws differentiate based on the sex of the participants, and as a result such laws are often seen as discriminatory, and in some jurisdictions they have been struck down by courts, usually on the basis that they discriminated against women.

The term ''adultery'', rather than ''extramarital sex'', implies a moral condemnation of the act; as such it is usually not a neutral term because it carries an implied judgment that the act is wrong.

Adultery refers to sexual relations which are not officially legitimized; for example it does not refer to having sexual intercourse with multiple partners in the case of polygamy (when a man is married to more than one wife at a time, called polygyny; or when a woman is married to more than one husband at a time, called polyandry).

Definitions and legal constructs

In the traditional English common law, adultery was a felony. Although the legal definition of ''adultery'' differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.

Traditionally, many cultures, particularly Latin American ones, had strong double standards regarding male and female adultery, with the latter being seen as a much more serious violation.

Adultery involving a married woman and a man other than her husband was considered a very serious crime. In 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man's wife was "the highest invasion of property" and claimed, in regard to the aggrieved husband, that "a man cannot receive a higher provocation" (in a case of murder or manslaughter).

The '' Encyclopedia of Diderot & d'Alembert'', Vol. 1 (1751), also equated adultery to theft writing that, "adultery is, after homicide, the most punishable of all crimes, because it is the most cruel of all thefts, and an outrage capable of inciting murders and the most deplorable excesses."

Legal definitions of adultery vary. For example, New York defines an adulterer as a person who "engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse."
North Carolina defines adultery as occurring when any man and woman "lewdly and lasciviously associate, bed, and cohabit together."
Minnesota law provides: "when a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery." In the 2003 New Hampshire Supreme Court case Blanchflower v. Blanchflower, it was held that female same-sex sexual relations did not constitute sexual intercourse, based on a 1961 definition from '' Webster's Third New International Dictionary''; and thereby an accused wife in a divorce case was found not guilty of adultery. In 2001, Virginia prosecuted an attorney, John R. Bushey, for adultery, a case that ended in a guilty plea and a $125 fine. Adultery is against the governing law of the U.S. military.

In common-law countries, adultery was also known as ''criminal conversation.'' This became the name of the civil tort arising from adultery, being based upon compensation for the other spouse's injury. Criminal conversation was usually referred to by lawyers as ''crim. con.'', and was abolished in England in 1857, and the Republic of Ireland in 1976. Another tort, alienation of affection, arises when one spouse deserts the other for a third person. This act was also known as desertion, which was often a crime as well. A small number of jurisdictions still allow suits for criminal conversation and/or alienation of affection. In the United States, six states still maintain this tort.

A marriage in which both spouses agree ahead of time to accept sexual relations by either partner with others is sometimes referred to as an open marriage or the swinging lifestyle. Polyamory, meaning the practice, desire, or acceptance of intimate relationships that are not exclusive with respect to other sexual or intimate relationships, with knowledge and consent of everyone involved, sometimes involves such marriages. Swinging and open marriages are both a form of non-monogamy, and the spouses would not view the sexual relations as objectionable. However, irrespective of the stated views of the partners, extra-marital relations could still be considered a crime in some legal jurisdictions which criminalize adultery.

In Canada, though the written definition in the '' Divorce Act'' refers to extramarital relations with someone of the opposite sex, a British Columbia judge used the '' Civil Marriage Act'' in a 2005 case to grant a woman a divorce from her husband who had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.

In England and Wales, case law restricts the definition of adultery to penetrative sexual intercourse between a man and a woman, no matter the gender of the spouses in the marriage. Infidelity with a person of the same gender can be grounds for a divorce as unreasonable behavior; this situation was discussed at length during debates on the Marriage (Same-Sex Couples) Bill. However, the practical effect of this ceased with the introduction of no-fault divorce in April 2022, which meant that unreasonable behavior ceased to be grounds for divorce.

In India, adultery was the sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse did not amount to rape, and it was a non-cognizable, non-bailable criminal offence; the adultery law was overturned by the Supreme Court of India on 27 September 2018.

Prevalence

Durex's Global Sex Survey found that worldwide 22% of people surveyed admitted to have had extramarital sex. According to a 2015 study by Durex and Match.com, Thailand and Denmark were the most adulterous countries based on the percentage of adults who admitted having an affair.

In the United States Alfred Kinsey found in his studies that 50% of males and 26% of females had extramarital sex at least once during their lifetime. Depending on studies, it was estimated that 22.7% of men and 11.6% of women, had extramarital sex. Other authors say that between 20% and 25% of Americans had sex with someone other than their spouse.

Three 1990s studies in the United States, using nationally representative samples, have found that about 10–15% of women and 20–25% of men admitted to having engaged in extramarital sex.Clements, M. (7 August 1994). Sex in America today: A new national survey reveals how our attitudes are changing. Parade Magazine, 4–6.

The Standard Cross-Cultural Sample described the occurrence of extramarital sex by gender in over 50 pre-industrial cultures. The occurrence of extramarital sex by men is described as "universal" in 6 cultures, "moderate" in 29 cultures, "occasional" in 6 cultures, and "uncommon" in 10 cultures. The occurrence of extramarital sex by women is described as "universal" in 6 cultures, "moderate" in 23 cultures, "occasional" in 9 cultures, and "uncommon" in 15 cultures.Divale, W. (2000). Pre-Coded Variables for the Standard Cross-Cultural Sample, Volume I and II. Jamaica, NY: York College, CUNY. Distributed by World Cultures
. See Variable 170 and Variable 171.

Cultural and religious traditions

Greco-Roman world

In the Greco-Roman world, there were stringent laws against adultery, but these applied to sexual intercourse with a married woman. In the early Roman Law, the ''jus tori'' belonged to the husband. It was therefore not a crime against the wife for a husband to have sex with a slave or an unmarried woman.

The Roman husband often took advantage of his legal immunity. Thus we are told by the historian Spartianus that Verus, the imperial colleague of Marcus Aurelius, did not hesitate to declare to his reproaching wife: "Uxor enim dignitatis nomen est, non voluptatis." (Wife' connotes rank, not sexual pleasure'', or more literally "Wife is the name of dignity, not bliss") (Verus, V).

Later in Roman history, as William E.H. Lecky has shown, the idea that the husband owed a fidelity similar to that demanded of the wife must have gained ground, at least in theory. Lecky gathers from the legal maxim of Ulpian: "It seems most unfair for a man to require from a wife the chastity he does not himself practice".

According to Plutarch, the lending of wives practiced among some people was also encouraged by Lycurgus, though from a motive other than that which actuated the practice (Plutarch, Lycurgus, XXIX). The recognized license of the Greek husband may be seen in the following passage of the pseudo-Demosthenic '' Oration Against Neaera'':

:''We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children and to be our faithful housekeepers. Yet, because of the wrong done to the husband only, the Athenian lawgiver Solon allowed any man to kill an adulterer whom he had taken in the act.'' (Plutarch, Solon)

The Roman Lex Julia, ''Lex Iulia de Adulteriis Coercendis'' (17 BC), punished adultery with banishment. The two guilty parties were sent to different islands ("dummodo in ''diversas'' insulas relegentur"), and part of their property was confiscated. Fathers were permitted to kill daughters and their partners in adultery. Husbands could kill the partners under certain circumstances and were required to divorce adulterous wives.

Abrahamic religions

Biblical sources

Both Judaism and Christianity base their injunction against adultery on passages in the Hebrew Bible

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