The new politics of adultery.

• Author: Cossman, Brenda
• Position: Sexuality and the Law

Adultery is nothing new. Nor are social sanctions against it. But there is something new in the contemporary cultural politics of adultery, which begins with an ever-expanding definition of infidelity. Once restricted to "natural heterosexual intercourse," infidelity now extends to a variety of sexual practices. (1) Indeed, these days, infidelity can occur without sexual contact at all. Computer sex, telephone sex, and email flirtations are all included within the ambit of adulterous relationships that violate the marital relationship. As the definition of infidelity expands, so do its practitioners. In several recent expos& of "the new infidelity," women have increasingly been shown to be equal opportunity cheaters. This expansion of infidelity and infidels has produced a new crisis of adultery; a virtual adultery epidemic has swept the nation.

Crises, in mm, require intervention. The "epidemic" has produced a new emphasis on both prevention and treatment. The first line of protection against adultery is a prevention strategy, based on identifying and minimizing risks. This approach involves a politics of self-discipline, of individuals recognizing and taking responsibility for managing the risks to their relationships. (2)

If prevention fails, then the new politics of adultery shifts to treatment. Despite the wreckage unleashed by adultery, redemption is possible if individuals are prepared to take responsibility for their actions and undertake the hard work of relationship repair. In the new politics of adultery, sex has become a project of self-governance. If the new intimacy has created more choice in intimate relationships, (3) then the new politics of adultery is about disciplining individuals to make the right choice, to "just say no" to adultery, or if that fails, to say "I'm sorry."

This new politics of adultery no longer relies heavily, as it once did, on legal regulation to promote marriage as a monogamous relationship. Adultery remains a criminal offense in a number of states, but it is rarely prosecuted. (4) Also, since the divorce revolution, divorcing parties are much more likely to rely on non-fault-based grounds for divorce, such as irreconcilable differences. (5) Yet, adultery, cheating, infidelity, and affairs remain a cause celebre of marriage crisis and failure. The sanctions against adultery today are more diffuse. Increasingly, television talk shows, magazines, best-selling self-help books, television dramas, and Hollywood films warn us to avoid this road to certain disaster. The meaning of adultery as a violation of marriage is now produced more culturally than legally.

1. FROM ADULTERY TO THE NEW INFIDELITY

   Declarations of a "new infidelity" abound in popular culture. In 2004, the cover of Newsweek announced "The New Infidelity: The Secret Lives of Wives." (6) The article was an expose of the "epidemic" of cheating women: as many as fifty percent of women polled were said to have had an extramarital affair during their marriage. In Salon "the new infidelity" marked the rise of Internet cheating. (7) Yet others have spun "the new infidelity" as workplace romance, (8) with the Wall Street Journal describing the office as "the new home wrecker." (9) The rising number of women in traditionally male-dominated workplaces has resulted in situations where women and men work in close proximity, which has allegedly resulted in a new epidemic of infidelity.

   With each of these new types of identified infidelities, the category expands. No longer restricted to heterosexual intercourse, infidelity now includes many types of sexual encounters. In fact, infidelity also includes non-sexual encounters, as the harm of adultery has been recast in some instances as a violation of emotional intimacy. A 2003 article in USA Today, for example, examined "the new infidelity" in the form of emotional affairs. (10) According to the experts quoted, conduct need not even be sexual to count as infidelity. (11) This expansion of the category, along with heightened focus on the women and men engaging in such conduct, has produced a perceived crisis of infidelity that sets the stage for the new politics of therapeutic intervention and self-discipline.

   1. The New Harm of "The New Infidelity"

      The legal definition and the underlying harm of adultery have changed considerably over time, from a narrow concern of illegitimate offspring to a much broader violation of marital emotional intimacy. Historically, adultery was defined to require heterosexual intercourse. The criminal and civil laws sanctioning adultery were not simply focused on prohibiting immoral sexuality, but were also explicitly justified in terms of ensuring that the children of a marriage were the biological offspring of the husband; it was this objective that justified treating a wife's adultery more seriously than a husband's. (12) In 1838, the Supreme Court of New Jersey explained this distinction and defined adultery explicitly in terms of the introduction of another man's blood line into a husband's lineage: "The heinousness of [adultery] consists in exposing an innocent husband to maintain another man's children, and having them succeed to his inheritance." (13) Indeed, the court pointedly stated that the harm to the husband, which is the "gist" of adultery, lay not in "the alienation of the wife's affections, and loss of comfort in her company," but rather in "its tendency to adulterate the issue of an innocent husband, and to turn the inheritance away from his own blood, to that of a stranger." (14) In some states, women's adultery was treated more harshly than men's for the purposes of divorce. Whereas a single act of adultery on the part of a woman was sufficient ground for her husband to divorce her, a husband had to be either "living in adultery" or committing habitual adultery for a woman to be entitled to a divorce. (15) This double standard was similarly justified on the basis of the potential adulteration of the husband's bloodline. (16)

      Over time, the double standard was removed, and adultery for the purposes of both criminal and divorce law was redefined as voluntary sexual intercourse between a married man or woman and a person other than the offender's spouse. In recent years, the requirement of sexual intercourse has also begun to change. Some courts have broadened the definition of adultery to include other types of sexual encounters. For example, in 1987, the Fourth Circuit Court of Appeals of Louisiana held that a wife had committed adultery even though she had not had sexual intercourse. (17) The wife admitted that she had slept "in the same bed with another man, that she had touched the other man's sexual organ and that he had touched hers and that they laid on top of each other." (18) The court concluded that "these repeated acts of marital infidelity constitute adultery." (19)

      Similarly, in 1992, a New Jersey court considered whether lesbian sex amounts to adultery. (20) The court held that, when viewed from the perspective of the injured spouse, an extramarital relationship is "just as devastating to the spouse irrespective of the specific sexual act performed by the promiscuous spouse or the sex of the new paramour. The homosexual violation of marital vows could be well construed as the ultimate in rejection." (21) The Court concluded that

      adultery exists when one spouse rejects the other by entering into

      a personal intimate sexual relationship with any other person,

      irrespective of the specific sexual acts performed, the marital

      status, or the gender of the third party. It is the rejection of the spouse coupled with out-of-marriage intimacy that constitutes

      adultery. (22)

      This expansion of the legal definition of adultery to include a range of non-penetrative sex reflects the transformation of intimacy in which marriage has become a relationship about both emotional and sexual intimacy. Pregnancy is no longer the central harm of adultery. Rather, adultery is now framed as a violation of the promise of emotional and sexual exclusivity. (23)

      This new understanding of the harm of infidelity is leading to an expansive definition where virtually any violation of the emotional or sexual exclusivity of marriage can be seen as infidelity. Infidelity experts, such as Shirley Glass, argue that affairs need not include sex at all. (24) "Sometimes the greatest betrayals happen without touching. Infidelity is any emotional or sexual intimacy that violates trust." (25) As Glass explains, "the new infidelity is between people who unwittingly form deep, passionate connections before realizing that they've crossed the line from platonic friendship into romantic love." (26) In her view, the transgression comes from the fact that they are sharing more of their "inner self, frustrations and triumphs [with their transgressors] than with their spouses." (27)

      Many seem to agree. As another infidelity commentator observed in Salon, "affairs do not begin with kisses; they begin with lunch." (28) A Newsweek poll found that forty-five percent of women and thirty percent of men believed that emotional betrayal was actually more upsetting than extra-marital sexual behavior. (29) While often interconnected, emotional infidelity has become as much a violation of marriage as is sexual infidelity. Sex has become an expression of the underlying emotional intimacy, rather than the sine qua non of marriage.

      A similar shift is apparent in emerging public debates about another "new infidelity," namely, whether viewing Internet pornography and participating in cybersex constitutes adultery. Glass specifically connects these two debates, using Internet affairs as an example of infidelity in the absence of sex: "[t]here can be an affair without any kind of touching at all. People have affairs on the Internet." (30) She is not alone. In Dr. Phil's view, watching Internet pornography is disrespectful of one's relationship and may cause "negative...