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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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