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Family Law Reader

Family Law Reader

December 2003

What Constitutes Adultery?

Laura W. Morgan

When Bill Clinton said, “I did not have sex with that woman, Miss Lewinsky,” he was telling the truth, because he defined “sex” as “sexual intercourse between a man and a woman.” He would also have been telling the truth in many states if he had said “I did not commit adultery with that woman, Miss Lewinsky,” because many states similarly define adultery as “sexual intercourse between a man or woman and a person other than the offender’s spouse.” See generally Black’s Law Dictionary at 52 (7th ed. 1999) (adultery is “voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife”); 24 Am. Jur. 2d Divorce and Separation § 66 (1983); 27A C.J.S. Divorce § 60 (1986).

For example, the court in the New Jersey case of W. v. W., 94 N.J. Super. 121, 226 A.2d 860 (Ch. Div. 1967) adhered to this strict definition of adultery. In that case, the husband filed a complaint for divorce solely on the ground of adultery. The wife submitted expert testimony from her gynecologist and hospital records, however, that at the time of the alleged adultery, she was physically incapable of engaging in sexual intercourse. Rather, as a result of x-ray treatments for carcinoma of the cervix, her vagina was completely occluded and obliterated. The husband argued that “adultery” should be construed by the court to include “lascivious conduct, or ... the performance of unnatural sex acts . . .” 226 A.2d at 861. The court disagreed with the husband’s position, holding, “Even actual proof of sexual conduct with a third person other than intercourse is not tantamount to adultery.” 226 A.2d at 862. See also Anonymous v. Anonymous, 283 Ala. 374, 217 So.2d 240 (1968) (holding that testimony of female witness in action for divorce that she had “sexual relations” with husband but that such term as used by her did not encompass sexual intercourse was not sufficient to prove adultery on part of husband).

In more recent times, however, given more modern sexual mores, many states have not felt constrained to define adultery in such limiting terms. E.g., N.Y. Dom. Rel. Law § 170(4) (effective Nov. 1, 2003) (“The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.”); M. V. R. v. T. M. R., 115 Misc.2d 674, 454 N.Y.S.2d 779 (Sup. Ct. 1982) (concluding, without discussion, that an extra-marital homosexual act, like a heterosexual one, may be grounds for divorce, based on adultery, relying on predecessor statute that contained expansive definition of adultery). Cf. Cohen v. Cohen, 200 Misc. 19, 103 N.Y.S.2d 426 (Sup. Ct.1951) (holding that wife was not entitled to a divorce from her husband on the ground of adultery based on his confession of “sodomy upon a male person”). Indeed, at one point in our legal history, adultery was defined as sexual intercourse between a man and a married woman only. See Nelson v. Nelson, 22 Conn. Supp. 145, 164 A.2d 234 (1960) (even though husband’s alleged adultery forming basis for wife’s divorce action was result of intercourse with an unmarried woman, such conduct was sufficient ground for divorce, notwithstanding fact that under statute, adultery relates only to sexual intercourse between a man and a married woman). Thus, it is not surprising that courts have expanded the definition of adultery to include a panoply of intimate extra-marital sexual acts that defy cataloguing, relying instead on Justice Stewart’s “I know it when I see it” test. Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676 (1964) (Stewart, J., concurring). This author prefers the “intimate conduct with a person other than your spouse that you would never, ever want your spouse to know about” test.

The courts first began to expand the definition of adultery by including acts of heterosexual oral sex. In Rosser v. Rosser, 355 So.2d 717 (Ala. Civ. App.1977), cert. denied sub nom. Ex Parte Rosser, 355 So.2d 722 (Ala.1978), the court held the wife was entitled to collect attorney’s fees from the husband despite her having performed fellatio on a man other than her husband during the marriage, which the court referred in dicta to wife’s act as “adultery.”

In Menge v. Menge, 491 So.2d 700 (La. App. 5th Cir. 1986), the court held that heterosexual oral sex constituted adultery, citing Adams v. Adams, 357 So.2d 881 (La. App. 1st Cir.1978) and Alphonso v. Alphonso, 422 So.2d 210 (La. App. 4th Cir.1982), which recognized homosexual adultery. Other cases followed suit. Doe v. Doe, 286 S.C. 507, 334 S.E.2d 829 (Ct App 1985) (single act of fellatio by wife can constitute adultery).

Courts then were open to consideration of other heterosexual sexual acts. In Bonura v. Bonura, 505 So.2d 143 (La. App. 4th Cir. 1987), the court considered whether the wife’s acts of intimate touching of her paramour’s genitals and their lying together naked in bed constituted adultery. In sustaining the trial court’s finding of adultery, the court stated, “We conclude that adultery, as grounds for divorce under Article 139 of the Civil Code, is not limited to actual sexual intercourse.” See also Morrison v. Morrison, 713 S.W.2d 377 (Tex. App.-Dallas, 1986) (holding that husband’s own testimony of his “sexual encounters” with other women, without intercourse due to impotence, is sufficient evidence of adultery).

Courts were also naturally faced with the question of whether homosexual acts can constitute adultery. At first, the answer was that homosexual sex could not constitute adultery. In H. v. H., 59 N.J. Super. 227, 157 A.2d 721 (App. Div.1959), a complaint for divorce on the dual grounds of adultery and extreme cruelty was filed based upon the wife’s lesbian relationship. The adultery count was voluntarily dismissed at trial and the alleged acts were found to constitute a cause of action for divorce on the grounds of extreme cruelty.

Then started a subtle shift. In a most oblique reference to the matter, the court in Patin v. Patin, 371 So.2d 682 (Fla. DCA 4th 1979), discussed the wife’s need for alimony. The court stated that the wife’s homosexual relationship, as an instance of adultery, could have an impact on the alimony award. The court thus assumed, without discussion, that a lesbian affair constituted adultery. In Bales v. Hack, 31 Ohio App.3d 111, 509 N.E.2d 95 (1986), the court also approved the extension of “adultery” to include homosexual activities, but gave no reason for that decision. Cf. Anonymous, 2 Ohio N.P. 342, 3 Ohio Dec. 450 (1895) (held wife not entitled to divorce from husband on ground of adultery based on his “sodomy with a beast”).

In Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981), the court makes a leap that is simply unexplainable. There, the court stated that a person commits adultery when he or she has sexual intercourse with a “person” other than his or her spouse, citing. Code Ann. § 26-2009 (Ga.L.1968, pp. 1249, 1300). The court then concluded, “Therefore, both extramarital homosexual, as well as heterosexual, relations constitute adultery.” Unless “sexual intercourse” is redefined to include homosexual intercourse, which of course begs the question, the holding is a non-sequitur.

In the last 15 years, however, the courts have begun to explain their holdings in greater detail. In the first expansive decision on the subject, RGM v. DEM, 306 S.C. 145, 410 S.E.2d 564, 566-67 (1991), the court stated that it found the wife’s traditional definition of adultery “unduly narrow and overly dependent upon the term sexual intercourse.” Then citing Patin v. Patin from Florida, the court concluded that explicit extra-marital sexual activity constitutes adultery regardless of whether it is of a homosexual or heterosexual character. “Accordingly, we conclude that homosexual activity between persons, at least one of whom is married to someone other than the sexual partner, constitutes adultery.”

Likewise, in S.B. v. S.J.B., 258 N.J. Super. 151, 609 A.2d 124 (Ch. Div. 1992), the court was called on to consider whether the wife’s extramarital lesbian relationship constituted adultery. Stating that an extramarital relationship is just as devastating to the wronged spouse regardless of the specific sexual act performed by the promiscuous spouse or the sex of the new paramour, the court concluded, “It is not the intent of this court to either condone or condemn homosexuality; that is a social issue best left to a more appropriate forum. What is important is to define, in human terms, those acts which constitute adultery so as to give rise to a termination of the marriage. Accordingly this court finds that adultery exists when one spouse rejects the other by entering into a personal intimate sexual relationship with any other person, irrespective of the specific sexual acts performed, the marital status, or the gender of the third party. It is the rejection of the spouse coupled with out-of-marriage intimacy that constitutes adultery.” 609 A.2d at 126-27.

The issue lay dormant until last month. In In re Blanchflower, 2003 WL 22515086 (New Hampshire Supreme Court, November 7, 2003), the court was called upon to decide whether the wife’s continuing lesbian affair constituted adultery. The court first stated that the divorce code contained no statutory definition of adultery. The court then defined adultery as defined by Webster’s Third New International Dictionary (unabridged ed. 1961): “voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband.” The court also looked to the criminal law’s definition of adultery: “A person is guilty of a class B misdemeanor if, being a married person, he engages in sexual intercourse with another not his spouse or, being unmarried, engages in sexual intercourse with another known by him to be married.” RSA 645:3 (1996). The court concluded that based upon the foregoing definitions, adultery under the divorce code does not include homosexual relationships.

The dissent called the majority to task. “To strictly adhere to the primary definition of adultery in the 1961 edition of Webster’s Third New International Dictionary and a corollary definition of sexual intercourse, which on its face does not require coitus, is to avert one’s eyes from the sexual realities of our world.” The dissent also pointed out that statutory interpretation is the court’s domain, and the court should, consistent with the public policy behind fault-based divorce of providing relief to the wronged spouse, define adultery consistent with that public policy. Citing Patin, Owens, S.B. v. S.J.B., and RGM v. DEM, the dissent concluded:

Nor does it seem reasonable that the legislature intended to allow a guilty spouse to defend against an adultery charge by arguing that, while he or she engaged in intimate sexual activity with another, the relationship was not adulterous because it did not involve coitus. It is hard to comprehend how the legislature could have intended to exonerate a sexually unfaithful or even promiscuous spouse who engaged in all manner of sexual intimacy, with members of the opposite sex, except sexual intercourse, from a charge of adultery. Sexual infidelity should not be so narrowly proscribed.

It is much more likely that our legislature intended the innocent spouse to establish adultery through circumstantial evidence showing, by a preponderance of the evidence, that the guilty spouse had engaged in intimate sexual activity outside of the marriage, regardless of the specific sexual acts involved or the gender of the guilty spouse’s lover. Under our fault-based divorce law, a relationship is adulterous because it occurs outside of marriage and involves intimate sexual activity, not because it involves only one particular sexual act. Accordingly, we respectfully dissent.

The best solution to the quandary posed by the Blanchflower opinion is for the legislature to adopt a more “modern” definition of adultery that encompasses both heterosexual and homosexual intimate sexual acts. In the absence of such legislation, however, the dissent in Blanchflower is the better argument. No married person thinks that his or her spouse is adhering to the marriage vows when he or she engages in intimate sexual acts such as oral or anal sex with another person. As a matter of statutory construction, the courts should define adultery to include these acts.


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