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Adultery

ADULTERY

Voluntary sexual relations between an individual who is married and someone who is not the individual's spouse.

Adultery is viewed by the law in many jurisdictions as an offense injurious to public morals and a mistreatment of the marriage relationship.

Statutes attempt to discourage adultery by making such behavior punishable as a crime and by allowing a blameless party to obtain a divorce against an adulterous spouse.

Although adultery has been historically regarded as a legal wrong, it has not always been considered a crime. In Europe during the fifteenth and sixteenth centuries, adultery was punishable solely in courts created by the church to impose good morals. In the ecclesiastical courts, adultery was any act of sexual intercourse by a married person with someone not his or her spouse. The act was considered wrongful regardless of whether the other person was married. At common law, adultery was wrongful intercourse between a married woman and any man other than her husband.

Criminal Laws

Several state legislatures statutorily prohibit adultery as a crime. Under some statutes, both parties to an adulterous relationship are guilty of a crime if either of them is married to someone else. Other statutes provide that the act is criminal only if the woman is married.

Under the law of many states, a single act of adultery constitutes a crime, whereas in others, there must be an ongoing and notorious relationship. The punishment set by statute may be greater for an individual who engages in repeated acts of adultery than for one who commits an isolated act.

Defenses An individual who has been charged with committing adultery may have a valid legal defense, such as the failure or physical incapacity to consummate the sex act.

A woman is not guilty of adultery if the sex act resulted from rape. Some states recognize ignorance of the accused regarding the marital status of his or her sexual partner as a defense. In a few jurisdictions only the married party can be prosecuted for adultery. If the other party to the relationship is not married, he or she may be prosecuted for fornication instead of adultery.

Initiation of Criminal Proceedings Under some statutes, a prosecution for adultery can be brought only by the spouse of the accused person although technically the action is initiated in the name of the state. Other states provide that a husband or wife is precluded from commencing prosecution for adultery since those states have laws that prohibit a husband or wife from testifying against his or her spouse. In such states, a complaint can be filed by a husband or wife against the adulterous spouse's lover.

Evidence Customary rules prescribe the types of evidence that can be offered to prove guilt or innocence. There must be a showing by the prosecutor that the accused party and another named party had sexual relations. Depending on state statutes, the prosecutor must show that either one or both parties to the adultery were wed to someone else at the time of their relationship.

Evidence that the defendant had the chance to have sexual relations coupled with a desire, or opportunity and inclination, might be sufficient to prove guilt. Photographs or testimony of a witness who observed the couple having sexual intercourse is not necessary. The fact that a married woman accused of adultery became pregnant during a time when her husband was absent might be admissible to demonstrate that someone other than her spouse had the opportunity of engaging in illicit sex with her.

Letters in which the accused parties have written about their amorous feelings or clandestine encounters may be introduced in court to support the assertion that the parties had the inclination to engage in sexual relations. Character evidence indicating the good or bad reputation of each party may be brought before the jury. Evidence of a woman's sexual relationships with men other than the party to the adultery generally cannot be used; however, if her reputation as a prostitute can be demonstrated, it may be offered as evidence.

Suspicious activities and incriminating circumstances may be offered as circumstantial evidence.

Enforcement of Statutes

Although the District of Columbia and approximately half of the states continue to have laws on the books criminalizing adultery, these laws are rarely invoked. Traditionally, states advanced three goals in support of their adultery laws: (1) the prevention of disease and illegitimate children; (2) the preservation of the institution of marriage; and (3) the safeguarding of general community morals.

Courts in the jurisdictions still prohibiting adultery have openly questioned whether adultery laws in fact serve these goals. The Florida Supreme Court, for example, found that adultery statutes bear no rational, much less compelling, relationship to disease prevention. The court said that the risk of contracting disease is already a greater deterrent to extra-marital sex than criminal punishment. The court also noted that the fear of prosecution prevents infected people from voluntarily seeking treatment. Purvis v. State, 377 So. 2d 674, 677 (Fla. 1979).

At the same time, many prosecutors began to realize that once the act of adultery is committed, the harm to the marriage is for the most part complete, especially if the infidelity is disclosed or discovered. In other words, after a spouse has been unfaithful, there is little the judicial system can offer to undo the act and reverse the damage. Thus, prosecutors have increasingly questioned whether prosecuting the adulterer will do much if anything to preserve the marriage.

Finally, judges, prosecutors, and other state officials have increasingly realized that prosecutions for adultery have had little practical effect in "safeguarding the community morals." Opinion polls consistently show that significant numbers of spouses admit to cheating on their partners during marriage. In light of the growing evidence that adultery laws no longer serve their three underlying purposes, most state prosecutors have made a conscious decision against wasting their scarce resources on prosecuting alleged adulterers.

In states that still have adultery laws on the books, but have failed to prosecute anyone under them recently, courts have ruled that the mere lack of prosecution under the adultery statute does not result in that statute becoming invalid or judicially unenforceable. Courts have also rejected the argument that prosecutions for adultery are inconsistent with the right to privacy guaranteed by state and federal constitutions. Commonwealth v. Stowell, 389 Mass 171, 449 NE2d 357 (Mass 1983).

As a Defense

Occasionally, adultery has been successfully asserted as a defense to the crime of murder by an individual charged with killing his or her spouse's lover. Courts are loath, however, to excuse the heinous crime of murder on the ground that the accused party was agitated about a spouse's adulterous activities. However, individuals who kill their spouse after catching him or her committing adultery may be able to rely on a heat of passion defense, and thereby face prosecution or conviction for manslaughter, rather than first degree murder.

Divorce

Based on the state's interest in the marital status of its residents, all legislatures had traditionally assigned statutes enumerating the grounds on which a divorce would be granted. These grounds, listed separately in the laws of each jurisdiction, generally included desertion, nonsupport, and adultery.

The basis of adultery as a ground for divorce has been discussed in various cases. There is an overriding public policy in favor of preserving the sanctity of marital relationships and family unity and a fear that adultery will serve to undermine these societal objectives.

Late twentieth-century changes in divorce laws, primarily the enactment of no-fault divorce statutes in many states, have made it easier for couples seeking divorce to end their marriages without having to prove adultery or any other ground. In the past many unhappy couples resorted to trickery to attempt to obtain a divorce through staging the discovery of allegedly adulterous conduct.

Nonetheless, adultery still may be relevant to divorce proceedings in which alimony is an issue. In twenty-seven states plus Puerto Rico and the District of Columbia, fault is one factor which courts will consider in deciding whether to award alimony. If the spouse seeking an alimony award committed adultery, he or she will have a more difficult time convincing the court that he or she is entitled to alimony than if he or she had not been unfaithful.

further readings

Friedman, Lawrence M. 2000. "A Dead Language: Divorce Law and Practice Before No-fault." Virginia Law Review 86 (October): 1497–1536.

Haggard, Melissa Ash. 1999. "Adultery: A Comparison of Military Law and State Law and the Controversy This Causes Under Our Constitution and Criminal Justice System." Brandeis Law Journal 37 (spring): 469–83.

cross-references

Circumstantial Evidence; Common Law; Divorce; Ecclesiastical Courts; Family Law; Fornication; Husband and Wife; Marriage; Privacy; Rape.

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Adultery

6. Adultery (See also Cuckoldry, Faithlessness.)

  1. Alcmena unknowingly commits adultery when Jupiter impersonates her husband. [Rom. Lit.: Amphitryon ]
  2. Alison betrays old husband amusingly with her lodger, Nicholas. [Br. Lit.: Canterbury Tales, Millers Tale]
  3. Andermatt, Christiane eventually has child by lover, not husband. [Fr. Lit.: Mont-Oriol, Magill I, 618620]
  4. Bathsheba pressured by David to commit adultery during husbands absence. [O.T.: II Samuel 11:4]
  5. Bloom, Molly sensual wife of Leopold has an affair with Blazes Boylan. [Irish Lit.: Joyce Ulysses in Magill I, 1040]
  6. Bovary, Emma acquires lovers to find rapture marriage lacks. [Fr. Lit.: Madame Bovary, Magill I, 539541]
  7. Brant, Capt. Adam fatefully falls for generals wife. [Am. Lit.: Mourning Becomes Electra ]
  8. Buchanan, Tom even with Daisys knowledge, deliberately has affairs. [Am. Lit.: The Great Gatsby ]
  9. Chatterley, Connie takes the gameskeeper of her impotent husband as her lover. [Br. Lit.: D. H. Lawrence Lady Chatterleys Lover in Benét, 559]
  10. Clytemnestra takes Aegisthus as paramour. [Gk. Lit.: Orestes ]
  11. Couples group of ten husbands sleep with each others wives. [Am. Lit.: Weiss, 108]
  12. Cunizza amours with Sordello while married to first husband. [Br. Lit.: Sordello ]
  13. currant symbol of infidelity. [Flower Symbolism: Jobes, 398]
  14. de Lamare, Julien Jeannes young philandering husband, who has affairs with her foster-sister and their neighbors wife. [Fr. Lit.: Maupassant A Womans Life in Magill I, 1127]
  15. Dimmesdale, Rev. Arthur Puritan minister who commits adultery. [Am. Lit.: Hawthorne The Scarlet Letter ]
  16. Guinevere King Arthurs unfaithful wife. [Br. Lit.: Le Morte dArthur ]
  17. Herzog insatiable husband plays the field. [Am. Lit.: Herzog ]
  18. Julia, Donna Alfonsos wife; gives herself to Don Juan. [Br. Lit.: Don Juan in Magill I, 217219]
  19. Karenina, Anna commits adultery with Count Vronsky; scandalizes Russian society. [Russ. Lit.: Anna Karenina ]
  20. Lancelot enters into an adulterous relationship with Guinevere. [Br. Lit.: Malory Le Mort dArthur ]
  21. Mannon, Christine conspires with lover to poison husband; discovered, commits suicide. [Am. Lit.: Mourning Becomes Electra ]
  22. Moechus personification of adultery. [Br. Lit.: The Purple Island, Brewer Handbook, 715]
  23. Pozdnishef, Madame bored with husband, acquires Trukhashevsky as lover. [Russ. Lit.: The Kreutzer Sonata, Magill I, 481483]
  24. Prynne, Hester adulterous woman in Puritan New England; condemned to wear a scarlet letter. [Am. Lit.: The Scarlet Letter ]
  25. scarlet letter A for adultery sewn on Hester Prynnes dress. [Am. Lit.: The Scarlet Letter ]
  26. Tonio after Neddas repulsion, tells husband of her infidelities. [Ital. Opera: Leoncavallo, Pagliacci, Westerman, 341342]
  27. Wicked Bible misprint gives Commandment: Thou shalt commit adultery. [sic ] [Br. Hist.: Brewer Dictionary, 108]

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Adultery

Adultery. The way in which religions have played so vital a role in the protection of what would now be recognized as gene-replication and the nurture of children has contributed to a strong condemnation of adultery in all religions—though what counts as adultery is diversely defined: thus, according to Jewish law, sexual relationship between a married man and an unmarried woman, although sinful, is not considered adulterous; In Islam (see ZINĀʾ), there is no distinction between men and women (Qurʾān 24. 3), but there has been considerable dispute about the permissibility of extra-marital sex between Muslim men and their unmarried slave women. At issue in the religious evaluation of marriage and adultery has been the stability of families within the continuing structure of society (hence the importance of known parentage and descent), along with the predictability and reliability of humans in relations of commitment to each other.

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adultery

a·dul·ter·y / əˈdəlt(ə)rē/ • n. voluntary sexual intercourse between a married person and a person who is not his or her spouse.

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adultery

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Adultery

ADULTERY

ADULTERY (Heb. נִאוּף, ni'uf; sometimes, loosely, זְנוּת, zenut; זְנוּנִים, zenunim; lit. "fornication, whoredom"). Voluntary sexual intercourse between a married woman, or one engaged by payment of the brideprice, and a man other than her husband.

Biblical Period

The extramarital intercourse of a married man is not per se a crime in biblical or later Jewish law. This distinction stems from the economic aspect of Israelite marriage: the wife was the husband's possession (of a special sort, see *Marriage), and adultery constituted a violation of the husband's exclusive right to her; the wife, as the husband's possession, had no such right to him. Adultery is prohibited in the Decalogue (Ex. 20:13; Deut. 5:17), where it is listed between murder and theft (cf. Jer. 7:9; Ezek. 16:38; Hos. 4:2; Ps. 50:18; Prov. 6:30 ff.; Job 24:14–15) among offenses against one's fellow. Like all sexual wrongs, it defiles those who commit it (Lev. 18:20; Num. 5:13). It is termed "(the) great sin" in Genesis 20:9 and in Egyptian and Ugaritic texts (cf. [ha]-ʿAverah, "[the] transgression," for sexual crimes in rabbinic texts, e.g., Av. Zar. 3a). Its gravity is underscored by its being punishable by the death penalty for both the man and the woman (Lev. 20:10; Deut. 22:22). Stoning by the public, a procedure often prescribed for crimes felt to threaten the well-being of the nation as a whole, among which were sexual crimes (Lev. 18:24–27; 20:22; Deut. 24:4; cf. Jer. 3:1–2), is mentioned in Deuteronomy 22:24; cf. Ezekiel 16:40; 23:46–47 (cf. John 8:3–7). Other punishments are reflected in non-legal texts. Burning is mentioned in Gen. 38:24 (cf. Lev. 21:9). Stripping, known in ancient Near Eastern divorce procedure, is reflected in the metaphor of Hos. 2:5 and mentioned in Ezekiel 16:37, 39; 23:26. The mutilation mentioned in Ezekiel 16:39; 23:25 does not seem to reflect Israelite practice, but rather the legal traditions of Mesopotamia, where Ezekiel lived (cf. 23:24: "[the nations] shall judge you according to their laws," and, cf. The Middle Assyrian Laws, 15 in Pritchard, Texts, 181; the same punishment for adulteresses in Egypt is attested by Diodorus Siculus, Bibliotheca, 1:18, according to G.A. Cooke, The Book of Ezekiel, 254).

Other ancient Near Eastern law collections also prescribe the death penalty for adulterers, but, treating adultery as an offense against the husband alone, permit the aggrieved husband to waive or mitigate the punishment (The Code of Hammurapi, 129, in: Pritchard, Texts, 171; The Middle Assyrian Laws, 14–16, in: Pritchard, Texts, 181; The Hittite Laws, 197–98, in: Pritchard, Texts, 196). Biblical law allows no such mitigation. Because the marriage bond is divinely sanctioned (cf. Mal. 2:14; Prov. 2:17) and the prohibition of adultery is of divine origin, God as well as the husband is offended by adultery (cf. Gen. 20:6; 39:8–9; Ps. 51:6), and an offense against God cannot be pardoned by man. Mesopotamian religious literature also views adultery as offensive to the gods, but, unlike the situation in Israel, this religious conception is not reflected in Mesopotamian legal literature.

Whether the severe provisions of the law were actually carried out in biblical times cannot be ascertained. Proverbs 6:23–35, warning of the harm and disgrace which will befall the adulterer, and Job. 31:11, which terms adultery "an assessable transgression" (E.A. Speiser, jbl, 82 (1963), pp. 301–306) seem to assume that the crime could be composed monetarily at the husband's discretion. But whether passages from the wisdom literature, with its strong international literary ties, reflect actual practice in Israel is a moot question.

As in other cases (see M. Greenberg, idb, 1 (1962), 739), here too, biblical law distinguishes between intentional and unintentional acts. In the Priestly Code, the final clause in Numbers 5:13 (lit. "she was not caught"; cf. the use of the word in Deut. 22:28) may mean that a woman who has had extramarital intercourse is guilty only if she was not forced. In the Deuteronomic Code (Deuteronomy 22:23–27), the presumption of consent on the part of the engaged girl is treated: If in the open country where no help would be available in response to a cry from the girl, she is presumed to have been forced and only her attacker is executed; if the crime occurred in the city, where help would presumably have been afforded her had she cried out, she is presumed to have consented, and is stoned with her paramour. No such presumptive distinction is made in this passage regarding the married woman: she and her lover must die in any case (Deut. 22:22; unlike The Hittite Laws, 197, in: Pritchard, Texts, 196, which makes this very distinction for married women). According to J.J. Finkelstein (jaos, 86 (1966), 366 ff.; jcs, 22 (1968–9), 13), the absence of such a distinction may reflect reality: the experience of daily life may have shown that married women who had had extramarital intercourse were likely to have been seeking sexual experience. While payment of a brideprice established a marriage tie constitutive of adultery, the "designation" of a slave woman to marry a man (free women are engaged by brideprice while slave women are designated for marriage by their masters; cf. Ex. 21:8) does not establish such a tie before the woman has been redeemed or freed. Hence a designated slave woman and her paramour are not executed, but the paramour must pay an indemnity and bring a guilt offering (Lev. 19:20–22). The question of the slave woman's consent is not raised in the law, presumably because she is not a legal person and her consent is legally immaterial.

Evidence for prosecution of adultery is scant in the Bible. Some passages suggest the husband's initiative in prosecuting (Num. 5:11–31; cf. Prov. 6:32–35), while another might be construed as reflecting public initiative (Deut. 22:22; cf. Sus. 28–41, 60 ff.). None of these passages is decisive. If a husband in a fit of jealousy but without evidence suspects his wife of adultery, the case is turned over to God (by means of the "ritual for cases of jealousy," Num. 5:11–31; see *Ordeal of Jealousy) for decision and, where the wife is guilty, for punishment.

in narrative, prophetic, and wisdom literature

The theme of adultery appears in several biblical narratives. Abraham's and Isaac's wives were taken or nearly taken by foreigners who believed them to be the patriarchs' sisters (Gen. 12:10–20; 20:2 ff.; 26:6–11), but Genesis 20:4 and 26:10 deny that any sexual contact took place. It is noteworthy that these passages seem to assume that these foreigners would sooner commit murder than adultery, "the great sin." Tamar's fornication (Gen. 38) might be viewed as technically adulterous, since she had already been assigned for Shelah. Potiphar's wife attempted to seduce Joseph, who refused to sin against his master and against God (Gen. 39:7–12). David committed adultery with Bath-Sheba, wife of Uriah the Hittite (ii Sam. 11). The narrative about Hosea's marriage (Hos. 1) describes Hosea's wife as adulterous, but this is probably a legendary motif of the sort typical in third-person prophetic narratives (see *Hosea).

Adultery is one of the crimes with which the prophets, particularly Hosea (4:2; etc.) and Jeremiah (7:9; 23:10, 14; etc.), charged Israel. The adultery and ravishing of wives is mentioned among threatened punishments (Deut. 28:30; Amos 7:17).

The book of Proverbs warns extensively against the seductions of the adulterous woman (2:16–19; 5:1–14; 6:24–35; 7:5–27; cf. 30:20). She is a gadabout (a frequent description of promiscuous women in the ancient Near East: cf. Gen. 34:1; The Code of Hammurapi, 141, 143, in: Pritchard, Texts, 172; J.J. Finkelstein, jaos, 86 (1966), 363, with nn. 28–29), rarely found in her own home (Prov. 7:11–12). She uses a smooth tongue to lure the foolish – like oxen to the slaughter – to her bed (2:16; 5:3; 6:24; 7:13 ff.). Adulterers seek the protection of darkness (7:9; cf. Job 24:15; Eccles. 23:18). The adulterer is more foolish than a thief, who will at least escape with his life (Prov. 6:30 ff.). Wisdom warns (6:20 ff.; 7:4 ff.) that traffic with the adulterous woman leads inevitably to loss of wealth (5:9–10) and life (2:18–19; 5:5; 6:32–35; 7:22–23, 26–27). One ought to "drink water from his own cistern" (5:15) and not from another's.

as a metaphor for idolatry

The exclusive loyalty which Israel must give God is analagous to the exclusive fidelity a wife owes her husband. Thus, Israelite religion seized upon the metaphor of marriage to express Israel's relationship with God and already in early texts employed language from the sphere of adultery to describe worship of other gods: Israel "goes a-whoring" (zanah) after other gods (Ex. 34:16; Num. 15:39–40) and yhwh, the "impassioned" or "jealous" (qanna) God, becomes "wrought up," or "jealous" (qanna) over Israel (Ex. 20:5; 34:14; Deut. 5:9; cf. Num. 5:14); idolatry, like adultery, was described as "great sin" (Ex. 32:21, 30–31; ii Kings 17:21). Later prophets, especially the author of Hosea 1–3 and after him Jeremiah (2:23; 3:1 ff.) and Ezekiel (16:1 ff.; 23:1 ff.), gave the metaphor full and explicit expression.

[Jeffrey Howard Tigay]

In Jewish Law

It appears that originally it was the husband's right to punish his adulterous wife himself (cf. the story of Judah – ordering even his daughter-in-law to be burned: Gen. 38:24) and that he could take the law into his own hands even against the adulterer (cf. Prov 6:34). It was only when adultery was elevated to the rank of a grave offense against God as well that the husband was required to resort to the priests or to the courts. Yet, so far as the adulterer was concerned, it is probable that he could always buy himself off by paying to the husband a sum of money by way of compensation: *compounding was not prohibited for adultery (cf. Prov. 6:35) as it was for murder (Num. 35:31). Where sufficient evidence was available both of the act of adultery (Mak. 7a) and of the adulterer and the adulteress having first each been duly warned (Sanh. 41a), both would be liable to the death penalty. The trial reported in the apocryphal book of *Susannah (37–41) was held without any evidence being adduced of a previous warning having been administered, either because the book predates the mishnaic law to this effect, or because the warning appeared irrelevant to the point of the story. No particular mode of execution is prescribed in the Bible, but talmudical law (Sifra 9:11) prescribed strangulation as being the most humane mode of *capital punishment (Sanh. 52b et al.). An older tradition appears to be that the punishment for adultery was stoning: the lighter offenses of the unvirginal bride (Deut. 22:21) and of the betrothed woman and her adulterer (Deut. 22:24) were punished by stoning, and the severer offense of adultery would certainly not have carried a lighter punishment. Stoning of adulteresses is moreover vouched for in prophetic allegories (e.g., Ezek. 6:38–40) and is described in the New Testament as commanded by the Law of Moses (John 8:5). In the aggravated case of adultery by a priest's daughter, the adulteress was burned (Lev. 21:9), while the adulterer remained liable to strangulation (Sif. 5:19). Burning is provided for another similar offense (Lev. 20:14) and is also found in prophetic allegory (e.g., Ezek. 23:25; Nah. 3:15). Where the woman was a slave "designated" for another man, the punishment was not death (Lev. 19:20), but he had to bring a sacrifice (ibid. 21:7), while she was flogged (Ker. 11a). Where insufficient evidence was available (the nature of the offense being such as usually took place in secret: cf. Job 24:15), a husband was entitled to have his wife, whom he suspected of adultery, subjected to the *ordeal of the waters of bitterness (Num 5:12–31). If found guilty, her punishment was a kind of talio, she being made to suffer with those organs of her body with which she had sinned (Sot. 1:7). One of the features of the ordeal was that the woman's hair was "loosened" (Num. 5:18), that is, disarranged (except, according to R. Judah, if her hair was very beautiful: Sot. 1:5). This disarrangement of the hair (usually covered and concealed) may be the origin of the later punishment of shaving a woman's head – more particularly in cases where lesser misconduct, and not the act of adultery, could be proved against her. Other punishments meted out to adulteresses in post-talmudic times included death, both by strangulation (hanging) and by burning, imprisonment, and, commonly, public flogging.

[Haim Hermann Cohn]

Maimonides rules that "if a woman has, while married to her husband, committed adultery unwittingly or under duress, she is permitted to him…" (Yad Ishut 24:19). Adultery committed under duress is rape, and is dealt with at length in the relevant entry (see *Rape). The question is what defines "inadvertent adultery" in this context and how it is adapted to the modern legal categories of mistake of law and mistake of fact.

adultery due to mistake of fact

In a situation where a woman thought that the man with whom she engaged in sexual relations was her husband, but was in fact another man, the halakhah regards the act as "inadvertent" or, in contemporary terminology – a mistake of fact. The Mishnah (Yeb. 3:10) deals with a case in which two men betrothed two women and, at the time of marriage, they exchanged the women between themselves. The Mishnah rules that in such a case, where the parties acted unwittingly and unintentionally (see tb Yeb. 33b where it explains that the term "[they were] exchanged" indicates that the exchange was inadvertent), all four parties involved must bring sin offerings, because they unwittingly violated the prohibition against relations with a married woman. However, the original couples are permitted to continue living together as man and wife (following an initial separation of three months in order to enable determination of the biological father in the event of pregnancy). The halakhic ruling is that "at all events they are permitted to one another after three months, for they are considered to have acted under duress because they were mistakenly exchanged" (Yam shel Shlomo, to Yebamot, ch.3, §17).

Another source dealing with adultery as the result of a mistake of fact was based on an actual case, recorded in tbNedarim 91a–b. A woman informed her husband that they had conducted sexual relations on the previous night. The husband expressed astonishment; denying that this had taken place. The woman responded that apparently she had sexual relations with one of the spice sellers, mistakenly assuming that it was her husband. R. Naḥman rules that the woman was not to be believed, for "perhaps she set her eyes on another" and made up the story, so that she could receive a divorce from her husband. He explains that this case concerned the wife of a kohen (priest) who would be forbidden to her husband even in the event of rape. Had the case involved the wife of an Israelite "since even according to her words she believed he was her husband, then there is no greater duress than that – and when there was duress regarding one of Israelite descent, she is permitted."

What follows from these sources is that adultery resulting from mistake of fact is governed by the law of duress, and therefore the law of adultery, including the prohibition of the woman to her husband, does not apply.

adultery resulting from ignorance of the law

The responsa literature contains a number of responsa discussing the question of how to view adultery when it resulted from a mistake in the law (i.e., ignorance of the law). One case dealt with by Rashba concerned a woman who had accepted a ring from a man to whom she had been introduced during a meal, and a few years later she married another man. Rashba ruled that she is considered an adulteress, and is prohibited to both of them. In his responsum, he discusses the claim that the woman was unaware that she was married to the first man, and that the adultery was therefore the result of a mistake. He wrote as follows: "Should it be claimed that she was under duress because she did not know that she was forbidden to marry – this is incorrect, for she ought to have verified the matter, and in any case where she did not examine, she is prohibited to both of them … But what kind of duress was there that she could rely upon in order to marry? For if so [were we to accept this claim], we would permit all women who had committed adultery, by saying: she believed that she had not become prohibited by this action. And the matter is clear" (Resp. Rashba, 1:1189).

When R. Joseph Colon (Maharik) was asked how to judge a woman "who had intentionally committed adultery while married to her husband, and did not know whether the act was forbidden: should it be regarded as an unintentional act?" His response was: "In my humble opinion, she cannot be permitted to her husband under the law applying to one who acted inadvertently, because she intended to betray her husband, and committed adultery while still married to him" (Resp. Maharik, 168). He based his position on Numbers 5:12: "If any man's wife go aside and commit a trespass against him" – in other words: the trespass is against the husband and not against the law (or, in Maharik's language, against God). There is no requirement that the woman actually intend to commit the sin of adultery; it is sufficient that she betrays her husband. Maharik offers the following explanation of the aforementioned passage from Maimonides – that the woman who commits adultery inadvertently is permitted to her husband – "this is only applicable where the mistake relates to the act of adultery, and was not a mistake regarding the prohibition itself, for the reason that her adultery is not considered to have been inadvertent is that she intended to commit adultery, but was unaware of the prohibition. What case would be deemed as inadvertent adultery? One in which she thought that it was her husband, as in the case mentioned in Nedarim 91."

These responsa were codified in later halakhic literature (see Beit Yosef on Tur eh 115, s.v.u-mishum hakhi; Rem'a, to Sh. Ar.eh 178.3; Yam shel Shlomo, Yeb. 3:17). The subject was the source of further discussion in subsequent responsa literature (see Leḥem Yehudah of R. Judah Eish, Hilkhot Ishut 24; Hida, Ḥayyim She'al, 2: 48).

In a judgment given in Israel, by the Ashkelon Regional Rabbinical Court (8 pdr 184) the aforementioned conception was accepted: namely, the distinction between a mistake of fact, which constitutes a defense with respect to adultery, and a legal-halakhic mistake – ignorance of the halakhah – which cannot exempt the woman from the consequences of the act of adultery. In the case in question, the Rabbinical Court ruled that the parties must divorce, and a few months later the get was given. It was proven to the court that the woman and another man had engaged in sexual relations after a divorce judgment had been given, believing that once a divorce judgment had been issued there was no longer any prohibition involved, even though they knew that the get had not yet been given. The Rabbinical Court based its ruling on the aforementioned responsa of Rashba and Maharik (as well as additional halakhic sources). The woman and the man, with whom she had become pregnant during the intermediate period between the divorce ruling and the get, were forbidden to marry each other, in accordance with the law that an adulterous woman is forbidden both to her husband and to her lover.

Summing up the position of Jewish law – which is also the positive law of the State of Israel in this area – adultery under duress is not considered adultery. As for adultery resulting from a mistake, a distinction is drawn between a mistake in fact, which is regarded as a case of duress, and hence not in the category of adultery, and a legal-halakhic mistake – i.e., ignorance of the prohibition on adultery, or of the law that only a get terminates the marriage; neither of the variants of the latter category will be regarded as duress. A woman engaging in sexual relations with another man under such circumstances is deemed an adulteress, and as such forbidden both to her husband and to her lover.

[Moshe Drori (2nd ed.)]

Family Aspects

See *Mamzer; *Divorce; *Husband and Wife.

bibliography:

bible: M. Greenberg, in: Sefer Y. Kaufmann (1960), 5–28; idem. in: idb, 1 (1962), 739; de Vaux, Anc Isr, 36–37; S. Loewenstamm, in: bm, 13 (1962), 55–59; 18–19 (1964), 77–78; M. Weinfeld, ibid., 17 (1964), 58–63; E. Neufeld, Ancient Hebrew Marriage Laws (1944), 163–75; L. Epstein, Sex Laws and Customs in Judaism (1948), 194–215; G. Cohen, in: The Samuel Freedland Lectures (1966), 1–21; H.L. Ginsberg, in: Sefer Y. Kaufmann (1960), 58–65; J.J. Finkelstein, in: jaos, 86 (1966), 355–72. jweish law: Buechler, in: mgwj, 5 (1911), 196–219; idem, in: wzkm, 19 (1905), 91–138; V. Aptowitzer, in: jqr, 15 (1924/25), 79–82; et, 2 (1942), 290–3; 4 (1952), 759–64; Sh. M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Leiden, 1970), 96–98. add. bibliography: M. Drori: "Inadvertent Adultery (Shegagah) in Jewish Law: Mistake of Law and Mistake of Fact," in: H. Ben-Menahem and N.S. Hect (eds.), Authority, Process, and Method – Studies in Jewish Law (1998), 231–67; A. Enker: "The Claim of Ignorance of the Law in Jewish Criminal Law," in: Mishpatim, 25 (1995), 87–128 (Heb.); idem, "Mistake of Law and Ignorance of Law in Jewish Criminal Law," in: Jewish Law Association Studies, 7 (1994), 41–50.

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Adultery

Adultery

Adultery is a nearly universal concern. It is defined by Judaic, Christian, and Muslim formulations, and in legal codes deriving from Roman law. Known colloquially as cheating or infidelity, adultery is more complex than simple faithlessness and is not to be confused with fornication, or sex between two unmarried people. In its simplest definition, adultery occurs when a married person has sex with someone other than his or her spouse. Marriage is requisite, on the one hand, for an action to be called adultery. On the other hand, the cheating couple also must not be married to one another; otherwise the situation is not adultery but bigamy or polygamy, even in jurisdictions where such is proscribed. It is sometimes the case that spouses agree beforehand that one or both spouses will seek sexual pleasure outside their marriages, a situation that has been called open marriage. Regardless of the level of consent or of participation by the offended spouse, most legal and religious authorities still consider such activity to be adulterous.

Simple definitions aside, whether a particular act can be called adultery depends very much on historical, legal, and cultural contexts. That is, what qualifies as adultery in one jurisdiction would not in another, or even in the same jurisdiction in another era. In some definitions, both "cheating" partners are adulterers if either of them is married, and each is to be treated similarly. In practice, one partner—usually the woman—is often punished more severely than the other. In many definitions, a married man commits adultery only if he has sex with a married woman not his wife; if the man's paramour is not married, neither is an adulterer. Under the same definitions, a married woman commits adultery when she has sex outside her marriage, regardless of the marital status of her partner. The primary variable in this diversity of definitions historically would seem to be the status of women. The more repressive the code or culture, the more likely it is that there will be a double standard regarding men and women in adulterous relationships, to the point that in some jurisdictions a woman can be guilty of adultery even if she did not consent to having sex.

The legal principle of property underlies many secular definitions of adultery, in the sense that the marriage bond is one in which one partner has rights to another (or, in some formulations, each has rights to the other), so that infidelity amounts to a kind of larceny. What are these rights? Under a dynastic model of marriage, what seems to be at stake is a man's right to legitimate heirs—that is, to sons and daughters of his own engendering, which adultery throws into question. Under more companionate models, the right would seem to be to exclusive enjoyment. It is rarer, though not unknown, for adultery to be considered a crime against the state so that the state might take action, regardless of the desires of the offended spouse or spouses. The logic behind such a position is that marriage is a foundational social relationship, so that individual acts of adultery undermine the society as a whole. Such is the logic behind the United States military's prosecutions of adultery. The Uniform Code of Military Justice, the code under which service people are tried in courts martial, does not specifically mention adultery. Rather, when an adultery case is brought, it falls under what is called the "General Article," which proscribes all conduct "to the prejudice of good order and discipline" and all conduct "of a nature to bring discredit" to the armed forces.

JUDAISM AND CHRISTIANITY

In the Judeo-Christian tradition, adultery is proscribed in the sixth or seventh mitzvah or commandment of the Decalogue (Exodus 20), what is colloquially called the Ten Commandments (sixth or seventh because different religions and denominations group the commandments differently). Perhaps the most notorious adulterer in the Hebrew scriptures is also one of the most revered kings, David, whose adulterous affair with Bathsheba and the punishments he received for it are prominently narrated in 1 Samuel. The prohibition against adultery (and incest) is one of the three strongest in Talmudic thinking, the others being those against murder and against idolatry, such that a person is enjoined from committing adultery even to save his own life. In Deuteronomy (chapters 20 and 22), the punishment for an adulterous couple is death, in order to purge the impurity brought on the community by such sin—"so shalt thou put away evil from Israel" (Deuteronomy 22:22, King James Version).

But Rabbinic law by the time of Roman occupation became decidedly averse to the death penalty, so that the condemned adulteress was only sent away and prohibited from rejoining either her husband or her paramour. Even under this new leniency, however, adultery remained a violation of God's ordained social order, and a husband was required to divorce his adulterous spouse, even if inclined to forgive her. In Deuteronomy, adultery depends entirely on the woman's marital status, occurring when a man has sex with a married woman or even a woman who is betrothed but not yet married. If the woman is not married or betrothed, it is not adultery, even if the man is already married. Similarly, if she is a slave, she is not guilty because Rabbinic law assumes she is not free to act as she might. The story of Tamar in Genesis illustrates the complications that could arise from these definitions in combination with other laws, in this case the requirement in Deuteronomy that a widow must marry her husband's brother in order to continue her husband's line. Tamar is the widow of Er and of his brother, Onan. Her father-in-law, Judah, keeps her from his remaining son, Shelah, so she disguises herself as a prostitute and has sex with unwitting Judah. When Tamar becomes pregnant, Judah threatens her with execution for adultery, since she is technically betrothed to Shelah. Tamar exposes Judah as the father, and in so doing exposes his injustice in keeping Shelah from her, thus saving her life. As early as 70 ce, Rabbi Yochanan ben Zakkai saw the injustice of these double standards during a proliferation of adultery, so he abolished the ordeal (involving the drinking of a bitter liquid in a public ceremony) that was supposed to test the guilt or innocence of the accused woman.

In some ways Jesus's teachings about adultery are more strict than the Deuteronomic tradition out of which they arise, expanding the question of adultery beyond physical acts to include desires and intentions: "Ye have heard that it was said by them of old time, Thou shalt not commit adultery: But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart" (Matt. 5:27-28). In effect, the commandment against coveting a neighbor's wife is subsumed under that against adultery. Jesus also adds (Matt. 5:32) that any divorce, except on grounds of infidelity, will cause a woman to commit adultery when she remarries, a position that is much stricter than the Jewish laws. Moreover, Jesus expands the definition of adultery to include any married man who has sex outside of marriage. It is no surprise, therefore, that early Christian thinking held the marriage bond to be of such importance—elevated to the point that it replicates the bond between God and the Church—that any adulterous act wounds the bond between God and man (see, for instance, Ephesians 5:22-32). And yet, for all this strictness, Jesus also seems to be in accord with the Rabbinic thought of the period, so that in the famous Pericope Adulterae, or story of the woman taken in adultery, Jesus does not sentence the woman to death but drives off her accusers with the question of their own sinfulness and frees her with an admonition to cease sinning (usually found at John 7:53-8:11).

Roman Catholic doctrine toward adultery derives from Jesus's teachings and from early Christianity's writings about marriage and adultery, and develops over the course of the Middle Ages. Because Catholic doctrine defines various stages and degrees of marriage, what constitutes adultery can be complicated. Unlike Jewish law, engagement to be married is not sufficient to make sexual intercourse with someone other than the fiancé adulterous. But if a couple agrees to marry, then has intercourse, they are sufficiently married in the eyes of the Church for any other sexual relations to be adulterous. Similarly, matrimonium ratum (which occurs when a couple has gone through the marriage ceremony but has not yet had intercourse in order to consummate the marriage) is also sufficient to make any other sexual relations adulterous.

While Jewish law allows divorce for virtually any reason and in fact has required it following adultery, Catholic doctrine never permits or recognizes divortium plenum, or absolute divorce, for marriages sanctified by the Catholic Church. This doctrine is based upon Jesus's rejection of divorce in Mark 10:9-12 and similar passages: "What therefore God hath joined together, let not man put asunder…. Whosoever shall put away his wife, and marry another, committeth adultery against her. And if a woman shall put away her husband, and be married to another, she committeth adultery." It may be remarked that the similar passage from Matthew (mentioned above) seems to contain an exception, that divorce is permitted if the spouse is adulterous, but Catholic doctrine rejects the possibility that the passages conflict with one another and that Jesus allowed absolute divorce in this limited circumstance. Catholic doctrine will allow in the case of adultery a divortium imperfectum, or a limited divorce, in which the marriage bond remains indissoluble though the couple lives apart from one another. Furthermore, canon law (see below) requires that the offended party seek redress within six months of discovering the infidelity, or else he or she is assumed to have condoned or forgiven the transgression and cannot take action. Nevertheless, in practice in such cases, the Catholic Church has often been known to grant annulments, declaring that a true marriage not only does not exist but never occurred in the first place, which, though doctrinally different from divorce, has the effect of allowing the couple to remarry elsewhere.

Just as doctrines about marriage complicate Catholic definitions of adultery, so too do doctrines about sexual acts. Under Catholic teaching, adultery requires intercourse, so that some sexual behavior between a married person and another married person may not amount to adultery, no matter how sinful the behavior may be. Similarly, according to some theologians, some sexual acts, such as sodomy, are adulterous even when the partners are married to one another.

ISLAMIC LAW

While the several varieties of Islamic law, or sharia, practiced in some Muslim countries differ in some particulars, the prohibition against adultery is shared by all and derives from the Qu'ran and from hadith, or traditions concerning the practices of the Prophet Muhammad. Though the Qu'ran does not quote the Decalogue, it does refer to it and seems to draw upon its tradition. Adultery is considered one of the most serious offenses, known as the Hadd offenses, because they are specified as offenses in the Qu'ran, another of which is the false accusation of adultery. Perhaps because the accusation is so serious, there are restrictions on it. The punishment for adultery is traditionally rajm, death by stoning, but this punishment is based only upon hadith, as the Qu'ran makes no mention of it. The seriousness of the crime necessitates under sharia a high standard of evidence, such as a voluntary confession or four reliable male eyewitnesses to the same act of penetration. In most schools of sharia, pregnancy is too circumstantial to be admitted as reliable evidence, but when it is admitted, most schools accept a counter-claim of rape as enough to free the woman from charges.

The variety of sharia followed in some Nigerian provinces, namely Maliki, is alone among the sharia schools to require some proof of rape to admit the counter-claim. A few high-profile cases of adultery brought before the sharia courts in some regions of Nigeria after 1999 generated worldwide debate about sharia's treatment of women. The Taliban regime in Afghanistan was widely decried for its radical interpretation of sharia. Under the Taliban, it was enough for a woman to be found in the company of a man who was neither her husband nor a near relation to be found guilty and to be executed. Although the Taliban were forced from power in 2001, as late as 2005 an Afghani woman, Bibi Amena, was executed by her family and community for having been found in the company of a man not her husband. The man reportedly received forty lashes. Iran has executed scores of men and women for adultery since the Islamic Republic came to power there in 1979. Most Islamic countries have laws against adultery on the books (as do many countries in Europe and North America) but make the burden of proof so high as to be very nearly impossible to result in executions. Some regions substitute jail terms, such as Dubai in the United Arab Emirates, where the maximum term in an adultery conviction is eighteen months. In most cases, imputations of adultery, or any other doubts thrown on a woman's honor, are handled extra-legally. Execution of the offending females (as in so-called honor crimes) by a family member is still common in many countries.

ROMAN LAW AND ITS SUCCESSORS

At least since the time of Augustus (63 bce–14 ce), Roman law treated adultery as a criminal action, and required adulterers to be exiled. Adultery under this definition depends entirely on the woman's marital status. A wife commits adultery when she has sex with any man other than her husband. If the woman is not married, it is not adultery, though there may well be penalties for her actions. A man's marital status is not part of the question. According to Augustus's laws, known as the Julian marriage laws, a father is justified in killing his adulterous daughter, and a husband justified in killing his wife's paramour. Regardless of the husband's willingness to forgive, Roman law required him to prosecute within a certain time frame, and required the couple's divorce. These laws did not prove popular, and Augustus himself was forced to exile his own daughter, Julia, for her adulterous acts only fourteen years after enacting his marriage laws. Later emperors softened and even ignored the laws. They are important, however, in that in the form of sixth-century Byzantine emperor Justinian's Corpus Juris Civilis, they help form the basis of canon law, which began to take its current form in twelfth-century western Europe. It may be interesting to note that adultery under Justinian's code did not apply if the husband was not offended by his wife's infidelity, such as when he prostitutes her. Such is not the case in canon law. As the laws of the Catholic Church courts, canon law had jurisdiction over many offenses—including adultery—anywhere Roman Catholicism held sway, including England, where canon law continued to evolve after the English Reformation. Even though English Protestantism held that marriage is not a sacrament, English canon law did not permit divorce, even for adultery, for many years. As the English church lost power in judicial matters, adultery began to be a secular court concern, and in 1857 England established a court specifically to take divorce out of the hands of the church. Under the laws of that time, husbands could obtain a divorce for simple adultery, but women were required to prove cruelty or desertion in addition.

The Napoleonic Code is a civil code promulgated by Napoleon I in 1804, forming the basis for the laws of many European countries besides France, and is an influence in the laws of Louisiana, New Mexico, and Puerto Rico. The Napoleonic Code derives from earlier French law, Roman law, and Justinian's Corpus Juris Civilis, but borrowed also from the laws of other nations. Again, it is not a criminal code, but is concerned largely with determining matters of property; as such, it concerns itself with adultery insofar as questions of marriage and divorce matter help determine the status of property and the determination of inheritance. Adultery, under the Napoleonic code, covers extramarital sex on the part of either the husband or the wife, but as a cause for action in divorce applies unequally, giving more restrictions to women at virtually every turn. Either husband or wife may sue for divorce on account of adultery, but the wife can divorce her husband only if he brings into their home his adulterous partner, called a concubine in the Code. Again, if a divorce should be granted because of adultery, the adulterous spouse—whether male or female—is prohibited from ever marrying his or her adulterous partner; but the Code adds that, should the wife be the adulteress, she may also be sent to a correctional facility for a three-month to two-year period. Children conceived through adultery are illegitimate under the Code, restricting their claims to inherit. But the Code does not permit accusations of adultery in an effort to disinherit a certain child, unless it can be proven that the legal father was absent from his wife during the period spanning from three hundred to one hundred and eighty days prior to the birth of the child. Napoleon's regime is also responsible for a penal code promulgated in 1810, which allows a man to kill his wife and her lover if he catches them in the act of adultery. No similar allowance is made for an offended woman.

CONCLUSION

Adultery would appear to be an unending human worry. In 2000, for instance, China revised a twenty-year-old marriage law in an effort to reduce adulterous activity, which many sensed to be on the rise. Keeping concubines was supposedly common in pre-communist China and seems to have reemerged after the economic reforms of the 1980s, but Chinese officials believe that adultery is contrary to proper socialist thought. Given that these reforms coincided with religious reform movements against rising adultery rates in Muslim and Christian cultures as well, one might wonder if adultery is not the constant and a culture's attitudes toward it the variable instead.

see also Marriage.

BIBLIOGRAPHY

"China Tackles Adultery." 2000. BBC News (March 11). Available from http://news.bbc.co.uk/1/hi/world/asia-pacific/674015.stm.

Collins, R. F. 2003. "Adultery (in the Bible)." New Catholic Encyclopedia. 2nd edition. Detroit: Gale.

"Nigeria: Shelled by the Sharia." 2002. Newsweek (Atlantic Edition) 139.4 (January 28).

Rahman, Fazlur. 2005. "Islam: An Overview." In Encyclopedia of Religion. 2nd edition, ed. Lindsay Jones. Detroit: Macmillan Reference.

Stone, Lawrence. 1977. The Family, Sex, and Marriage in England, 1500–1800. New York: Harper and Row.

U.N. Office for the Coordination of Humanitarian Affairs. 2005. "Afghanistan: Woman Executed for Adultery." Available from http://www.irinnews.org/report.asp?ReportID=46914.

United States. 2004. "Uniform Code of Military Justice." Title 10 U.S. Code, Sec. 934, Art. 134. Available from http://www.au.af.mil/au/awc/awcgate/ucmj.htm.

                                                  Erick Kelemen

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Adultery

ADULTERY

Defined by moral theologians as the act of sexual intercourse between a married man and a woman not his wife, or between a married woman and a man not her husband. The special note here is that at least one of the two parties concerned is married. If both are married, the guilt, of course, is compounded. As to the specific guilt of adultery, it adds a sin against justice to the intrinsically grave malice of fornication, which in itself is a deordination of sex from its true and appointed end. The victim of the injustice is, of course, the innocent spouse, whose marital rights are violated by the sinning parties.

Authors are agreed that the special malice of adultery remains even if the injured spouse should consent to the evil action. The reason is that marriage is an indissoluble contract, and hence no one can waive his rights in this matter, and they are in fact inalienable.

As to the consequences of adultery, Canon Law makes it clear that if one party is guilty of adultery, the other has the right to effect a permanent separation, and this indeed without any intervention of ecclesiastical authority. The marriage bond itself remains, however, and precludes remarriage. Canon 1152 of the code notes also that this right is forfeited if the other party consented to the crime, was the cause of it, expressly or tacitly condoned (i.e., pardoned) it, or was guilty of the same crime. The innocent party is considered to have condoned the crime if, having learned of it, he or she continued to live with the guilty one in marital relations. The law presumes this to be the case unless the innocent party within six months has turned the adulterer out of doors, or has left, or brought legal action against, him or her.

When separation has taken place because of adultery, the innocent party is never again under obligation to readmit the adulterer to a community of married life. If the innocent party freely desires this readmission, however, it is his privilege to grant it, unless the adulterer in the meantime, with the consent of the innocent party, has assumed new obligations, such as the vows of the religious state. In general, it may be said that the Church favors the condoning of the adultery by the innocent party, out of a spirit of Christian charity, for the sake of keeping the family together, unless circumstances clearly make this inadvisable.

If the party accused of adultery denies the crime, objects to the departure of the spouse, and takes his case to an ecclesiastical court, the other party must furnish proof of the adultery.

The right to separate belongs to the innocent party, not to the guilty one, and the adulterer must stay with his spouse if the latter desires this. Once the innocent party has decided on this course of action, the adultery ceases to be a cause of separation, and the innocent party may not at some future disagreement or quarrel threaten to separate because of the adultery.

Bibliography: j. aertnys and c. a. damen, Theologia moralis, 2 v. (16th ed. Turin 1950). s. woywod, A Practical Commentary on the Code of Canon Law, rev. and enl. c. smith (New York 1963).

[l. g. miller/eds.]

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