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

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.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman

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