Adultery

• Author: Jeffrey Lehman, Shirelle Phelps

Page133

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...