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