Maybe we’re stretching the definition of adultery a bit too far?

Posted Thursday, September 23rd, 2010 by Gregory Forman
Filed under Divorce and Marriage, Law and Culture, Not South Carolina Specific, Of Interest to General Public

I married a few years before I moved to South Carolina or began practicing family law.  When I married I thought I had a workable definition of the what the adultery that I wasn’t supposed to be having meant.  I knew I wasn’t to have sex with other women.  My wife wouldn’t have considered it a defense to adultery if my new partner was a man (though I hope she would have been extra surprised).  And, while I generally admire our 42nd President, my wife and I would definitely have considered it adultery if someone did to me what Monica Lewinsky did to William Jefferson Clinton.

Later, when I began practicing family law in South Carolina, I noticed that the legal definition of adultery seemed congruent with my personal definitions.  Homosexual acts can constitute adultery. R.G.M. v. D.E.M., 306 S.C. 145, 410 S.E.2d 564, 567 (1991).  Sexual intimacy without intercourse can constitute adultery.  Nemeth v. Nemeth, 325 S.C. 480, 486, 481 S.E.2d 181, 184 (Ct.App.1997).  Yet South Carolina courts have not specifically stated what sexual acts constitute adultery.  Panhorst v. Panhorst, 301 S.C. 100, 104, 390 S.E.2d 376, 378 (Ct.App.1990).  This decision not to fully define adultery is deliberate; however I have yet to see the South Carolina courts find adultery when a spouse and the alleged paramour weren’t even touching each other.

There’s a lot of behavior that involves social interactions with others that can stress a marriage without that behavior constituting adultery.  Examples include a spouse having a close friendship with a member of the opposite sex, a spouse revealing intimate details of his or her life to a member of the opposite sex, or a spouse who talks frequently on the phone to a member of the opposite sex.  Lately I’ve seen attorneys and litigants trying to label such behavior as “emotional adultery.”  This is happening even if the spouse and opposite-sex-friend haven’t touched each other or even been in the same zip code.  Meanwhile, Delaware Senate candidate Christine O’Donnell talks of treating masturbation like adultery, a view apparently shared by some conservative Christians.

While I have previously blogged that our culture might be happier if we took a more tolerant attitude towards adultery, there’s no doubt that adultery generally creates hurt and mistrust.  Frankly there’s a crass but understandable rationale for the prohibition against adultery: our culture wants paternity and marriage to be congruent and, in the era prior to DNA paternity testing, this was the best way to insure the two went together.  As someone who’s also previously blogged about the problems that result when children are conceived haphazardly, the cultural and legal prohibitions against adultery don’t bother me.

However, this attempted expansion of the definition of adultery does bother me.  While most folks’ definition and expectation of marriage includes sexual fidelity, I read nothing in our history of marriage that authorizes one spouse to control all aspects of the other spouse’s sexuality or intimate relationships.   Yet without a belief that marriage gives one spouse control over the other spouse’s sexuality, how could masturbation be equated with adultery?  Without a belief that marriage gives one spouse control over the other spouse’s intimate friendships, how could we even have a concept of “emotional adultery?”

I assume that masturbation takes place in marriages because spouses have mismatched libidos.  Is this really surprising or something that we do not want to expect spouses to tolerate?  Note that one of O’Donnell’s beefs with masturbation is that “if he can please himself, why am I even in the picture?”  How will the institution of marriage become more attractive or stable if we expect our spouses to be wholly dependent upon us?

I assume that people develop intimate-but-not-sexual relationships with members of the opposite sex because the emotional intimacy with their spouse isn’t sufficient.  Rather than faulting the spouse with the intimate friendship we should be asking the complaining spouse to accept that folks can have multiple intimate friendships and suggesting that this spouse work on improving the intimacy in the marriage if he or she finds the friendship bothersome.

Marriage is hard enough that we don’t need to give spouses who are looking for reasons to feel aggrieved any more ammunition.  Expanding the definition of adultery to the point in which it doesn’t even need to involve physical contact with another person, or even another person at all, won’t make marriages more stable: it will simply make spouses (more) miserable.

11 thoughts on Maybe we’re stretching the definition of adultery a bit too far?

  1. George Sink says:

    You are perhaps not culturally confused enough to joyfully adopt the apparent expanding definition of adultery. You can detect the growing confusion if you feel, as I do, that elements of our society have, for example, uncomfortably blended war with religion. Are elements of popular culture’s mind control expanding to scarlet letter proportions? Let’s hope not.

    Thank you for your excellent work, Greg.

  2. Anne Frances Bleecker says:

    Greg — thanks for this — Another troubling aspect of the expanding definition of adultery is the fact that adultery is a crime in South Carolina — while not prosecuted, it is still the law and how much “adultery” evidence is needed for a conviction? AFB

  3. Jean Thomas says:

    Would it be considered adultery if the wife were to have sex with someone other than her husband in the following circumstance: the couple have been married many years, the husband has had an erectile dysfunction problem for the entire course of the marriage and some medications don’t work and the one that does work makes the husband sick. The wife has lived without sexual intercourse for 20 years other than a few times assisted by medication which ends up making her husband sick. The couple is able to give each other orgasms with fondling. So if the wife were to have intercourse with someone would this be adultery since she is not having intercourse with her husband through no fault of her own ?

    1. That would still be adultery.

  4. Mommyof 1 says:

    1.5 years prior to my sons(5 years of age) birth i exchanged romantic(not sexual) emails with someone of the opposite sex that lived in a different state. that ended
    No 6.5 years later my husband is claiming adultery in SC?
    Is this considered adultery in SC? I thought no?
    and in SC would his watching pornography constitute emotional adultery?

  5. Christopher Riley says:

    I want to ask If you Believe in the ten commandments ?
    adultery is one as can’t commit Adultery whis is a good law for states but
    i also ask what are punishment ? im not in this state but just curious

  6. Fred says:

    I was just crucified, bled to death and set up for contempt of court by a judge (Who seems also to be a big player in a Church there.) in Rock Hill for Adultery, because the sexual intercourse I was accused of and the main reason for the divorce (In almost every contented divorce in SC, Adultery is thrown in the mix, just in case it sticks.), took place AFTER I was thrown out of the house for adultery by my ex spouse, but BEFORE the divorce was filed at the court. Even my lawyer didn’t know this difference between factual adultry and lawful adultry.

    Set up for contempt of court: Having to pay beside alimony and her lawyer, also 2 months each month $500 for missed temporary alimony (That was obviously set to high because of notarized fraudulous financial statements with a missing $70,000 of my spouse for starters.) a month with unemployment benefits of $1040 a month.

    I get to live of $15 a month for these 2 months, and if I don’t pay, a year in prison for contempt of court, I have been told.

    A little backward. But then again.. South Carolina. What does one expect, Justice?

    Something more.. Officially, Lying in family court in SC is punished with 6 months in prison. The lawyers know that no one is prosecuted for this, so the lying game about benefits, fraudulous financial statement, everything is considered fair game against people that go for justice and truth, to wring with the help of the courts the last rotting nickel out of people’s pockets, to support leeches and gold diggers with a sense of entitlement and to keep the game of the Lawyers going with things like a mandatory mediation to save “god forbade failure” a marriage.

  7. Jonadab says:

    In language heats the battle for order and structure of civilization as terms change meanings to empower the current feminist trends.

    Rape is no longer forced intercourse performed on an unwilling person, but is now any sexual activity that someone (a female) later regrets. Harassment at work is talking to a woman or looking at a woman who does not find you attractive. Abuse is no longer beating-up another person with whom there is a relationship, there are now a myriad kinds of abuse including emotional abuse (Feelings got hurt), verbal abuse (you spoke to me in a way I didn’t like), spiritual abuse (you told me to stop sinning), financial abuse (you didn’t let spend all the money like a drunken sailor), child abuse (while some examples are egregious, others are accused for building character like it has been done for centuries and in many other cases as a threat to enhance the frivorce settlement) and sexual abuse.

    Why not feminize adultery too. This time however, it is the church that is leading the way. Taking the words of Jesus and alienating them from the context and whole of scripture, adultery as a civil matter has been redefined as looking at a woman and appreciating her appearance. Hence all Christian men know that if they go to “christian” counseling they go as already convicted adulterers to negotiate their sentence and plea bargain for their authority given by Christ. The wife is presumed to have “biblical” grounds for a frivorce; she is just so spiritual to not leave….yet. Her defrauding or insubordination is of little consequence because it is provoked by the husband’s “adultery”. This all serves to squeeze the handles of the bolt cutters as they castrate more and more men and fracture more and more families. Geldings and steers abound, aint feminism grand.

  8. Kimberlie Blanchard says:

    I think that you should be able to get a divorce on thr grounds of adultery when your spouse is addicted to pornography and witholds any intimacy or affection because of that addiction.

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