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What is Infidelity?

No doubt the revelation of the identities of millions of married people who have used “Ashley Madison,” an internet site dedicated to marital infidelity (“Life is short; have an affair”), has caused many people to reexamine what conduct on the part of a spouse or partner is infidelity:  Are thinking, looking, sexting, acts of infidelity?  Adultery must be, but what is adultery?

What seems like a simple concept, has, in fact, a lengthy, evolutionary history, that did not just begin with a U.S. President narrowly defining “sexual relations.”  In the Bible story of Abraham, when his wife, Sara, could not have a child, he had intercourse with their maid.  Although adultery was one of the “thou shalt nots” of the Decalogue, the term did not apply to Abraham’s conduct.  In ancient Rome, only a married woman could be guilty of “adulterium.”

In early English common law, adultery was sex with a married woman.  The ecclestiantical view was any sex by a married person with someone other than one’s spouse.  Under either view, the act of a single woman with a married man did not make her an adulteress.  Commentators explain that the upper classes’ resort to prostitution could have been affected if the women were criminals subject to the severe punishments of the times.  Famous adulteresses in literature – Madame Bovary, Anna Karenina, Hester Prynne – were married.

But these principles had to be reexamined with the advances made in women’s rights in the 19th and 20th centuries.  A single man committed the crime of adultery by having intercourse with a married woman.  Was it not gender discrimination not to apply the same principle to a single woman having sex with a married man?  Did not equality work both ways?  Faced with this question, state courts found they could not justify disparate treatment, and statues had to be modified to define adultery in egalitarian terms.

Then, and this was true in my early years of practice, the sexual revolution of the post-World War II era led to more and more instances of married persons having same-sex relationships.  Were they committing adultery; a ground for divorce?  Many courts adhered to the traditional definition and held that sex with a person of the opposite sex was required.

Today, a majority of States have recognized same-sex marriages, and the Supreme Court has said the remainder must do likewise.  Since adultery is still a ground for divorce in many jurisdictions, it seems that there will have to be another adjustment in the definition of adultery.  The Attorney General of Maryland has taken a lead and in a recent opinion expressed the belief that under Maryland’s existing laws, same-sex sex is adultery in the same way as heterosexual sex is.  (Note: the Attorney General’s opinion is only advisory, and not the same as a Court ruling.)  Other States will have to answer this question, and it will fall to courts and legislators to deal with what once seemed simple.

Which brings us back to Ashley Madison.  In a time of evolving sexual morés and gender roles, what is infidelity, and what conduct revealed through revelations of Ashley Madison hackers will become causes of the break-ups of marriages and grounds for divorce?  This will be the beginning of many difficult, emotional, complicated and, sometimes, legal arguments.

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