The Slate Gist


Suddenly, adultery is big news. But what exactly is adultery? Is it illegal?

In case you have lost track of all the adultery stories in the news, here is the list:

Former football star Frank Gifford was photographed cuddling with a woman who was not his wife (talk-show host Kathy Lee Gifford). He later admitted to having an affair with the woman. Special angle: A tabloid paid her to seduce him.

Michael Kennedy, son of Robert, admitted to having an affair with his daughter’s 14-year-old baby sitter.

Georgia gubernatorial candidate Mike Bowers admitted to a 10-year extramarital affair. Special angle: When Bowers was attorney general, he prosecuted a gay man in what became a famous Supreme Court case (Bowers vs. Hardwick) upholding anti-sodomy laws.

Police found comedian Eddie Murphy, a married man, with a transvestite prostitute in his car.

The newly appointed president of ABC News, David Westin, acknowledged his affair with ABC public-relations executive Sherrie Rollins, wife of political consultant Ed Rollins.

A child-support suit was filed against Roger Clinton, the president’s brother, because he conceived a child with a married woman in 1990.

The Air Force discharged pilot Kelly Flinn because she disobeyed orders to end her relationship with a married soccer coach.

Sgt. Maj. Gene McKinney, the Army’s top enlisted soldier, was charged with adultery, as well as with sexually harassing four servicewomen.

Air Force Gen. Joseph Ralston’s candidacy for the chairmanship of the Joint Chiefs of Staff was derailed because he had had a relationship with another woman while separated from his wife.

Army Maj. Gen. John Longhouser, head of the Aberdeen Proving Ground, retired after an affair he had had five years ago became public knowledge.

Most societies prohibit adultery–sex between a married person and someone other than his or her spouse–at least, formally. A handful–the most researched is a tribe of Alaskan Inuit–have condoned affairs. Tolerance of the practice varies. In France, Prime Minister François Mitterrand’s mistress stood next to his wife at his funeral. In some Muslim societies, adulterers are still stoned to death. The United States falls somewhere between these extremes.

Three theories explain the prohibition’s genesis. One is evolutionary: Men must determine which children they sire, something only strict monogamy can ensure. Another is economic: Prohibiting adultery preserves monogamous relationships and thence families, whose labor was needed for agriculture. Finally, it is said that Jews enshrined the adultery prohibition in the Ten Commandments–of which it is the seventh–to make their group more cohesive and to distinguish themselves from surrounding polygamous tribes.

The United States inherited English common law, which made adultery, as well as fornication (sex between unmarried people) and sodomy (oral and anal sex), punishable crimes. In the mid and late 19th centuries, when states wrote their criminal codes, they incorporated these sex laws. Twenty-six states continue to have anti-adultery lawsonthebooks. These laws vary considerably. Some define adultery as any intercourse outside marriage. According to others, it occurs when a married person lives with someone other than his or her spouse. In West Virginia and North Carolina, simply “to lewdly and lasciviously associate” with anyone other than one’s spouse is to be adulterous.

Is a singleperson in an adulterous relationship guilty of adultery? All but seven states punish both people involved. Colorado, Georgia, Nebraska, North Dakota, and Utah only punish the married person. In the District of Columbia and in Michigan, when a married man sleeps with an unmarried woman, only the man is guilty, but when a married woman sleeps with an unmarried man, they’re both guilty. Most laws make no exceptions for couples who are separated or in the process of obtaining a divorce. Punishments also vary. Adultery is a felony in Massachusetts, Michigan, Oklahoma, and Idaho, and a misdemeanor everywhere else.

In practice, adultery laws matterlittle: Only one case–against an Alabama man–has been prosecuted in the last five years. Most states have not enforced their adultery laws since World War II.

Before the 1970s, when every state passed a “no fault divorce” law, adultery was usually the only reason courts would grant divorces. (Under no-fault divorce, no specific reason is required.) Charges of adultery also can be used to get a more favorable divorce settlement.

Adultery also matters in the military. The Uniform Code of Military Justice, the military criminal code, bars married servicemen from having extramarital sex and unmarried servicemen from sleeping with married people. However, the rules come with qualifications. They say that the military will only prosecute when a case harms “good order and discipline” and when the adultery is “of a nature to bring discredit upon the armed forces.” The ambiguity is intentional: Visits to prostitutes are not reasons for a court-martial, but long-term affairs and affairs between soldiers are considered dangerous and deserving of punishment.

U nlike civilian anti-adultery laws, the military rules are sometimes enforced. Last year the Air Force alone prosecuted 67 soldiers for adultery. Critics say that the military applies these laws hypocritically, allowing high-ranking male officers to get away with affairs but not women or rank-and-file soldiers. Secretary of Defense William Cohen has ordered a Pentagon commission to clarify the guidelines in an effort to eliminate perceived inconsistencies.

Adultery still plays a role in Catholicannulments. The Catholic Church still does not consider divorces legitimate: Marriage, it says, is a sacrament and insoluble. A church considers a divorced person who remarries to be living in a state of sin–i.e., committing adultery–unless a church tribunal annuls the previous marriage(s). An annulment is a declaration that a marriage was not legitimate to begin with. Adultery is grounds for annulment, on the theory that if a person knew that his or her spouse had a predilection toward infidelity, the marriage would not have occurred in the first place. Until recently the church was stingy with annulments. But last year it granted more than 60,000, nine out of 10 of them in the United States. Sheila Rauch Kennedy, ex-wife of Rep. Joseph Kennedy II, has garnered much attention for her recent book, Shattered Faith, which criticizes the church’s annulment policies. She claims that the church hurts children of annulled marriages when it claims that their parents were never legitimately wed.

How widespread is adultery? Alfred Kinsey’s famous 1948 survey of American sexual behavior found that seven out of 10 men had cheated on their wives. More accurate, more recent research shows that the prevalence of adultery is not as high. A survey taken two years ago by the University of Chicago’s National Opinion Research Center shows that slightly more than 11 percent of women and 21 percent of men admitted to having an adulterous affair during their lives.