Adultery
Adultery is generally defined as extramarital sex that is or was considered objectionable on social, religious and moral grounds, and which often resulted in legal consequences. Although the sexual activities that can be described as adultery vary, as well as their consequences, the concept is found in many cultures and shares similarities in Judaism, Christianity and Islam. Adultery was and continues to be viewed by many societies as offensive to public morals, and as undermining the "marital" relationship.
Historically, many cultures considered adultery a sin and a very serious crime, sometimes subject to severe penalties, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. In most Western countries during the 19th century, most direct criminal penalties have fallen into disfavor. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries repealing adultery laws. In countries where adultery is still a criminal offense, punishments range from a fine to caning and even capital punishment.
Even in jurisdictions that have repealed adultery laws, adultery may still have legal consequences. For example, in jurisdictions with fault-based divorce laws adultery almost always constitutes a ground for divorce and in some jurisdictions it may be considered in relation to custody of children. Even in jurisdictions with no-fault divorce, adultery may still be a factor in property settlement and the award or denial of alimony.
International organizations have called for the repeal of adultery laws, especially in the light of several high-profile stoning cases that took place 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 where adultery is a crime are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but also in the 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 their 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 of an innocent husband... and to expose him to support and provide for another man's ". 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 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.
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".
The Encyclopedia of Diderot & d'Alembert, Vol. 1, 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 provided: "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, extramarital 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 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
'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.
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.