Should Adultery be a Crime?

Usually when I start writing a page I know the conclusion before I start. This page is different. It seems to be the mark of a civilized society that adultery is not treated as a matter of concern for the courts. Societies which punish adultery are seen as harsh, backward, misogynistic and theocratic. My prejudice is strongly against the idea that adultery should be punished. But I am adamantly opposed to prejudice so I will examine the idea and see where the argument takes me.

Is it right that people enter into a contract and can break it with impunity? That doesn't seem right. Should society at large be a party to the contract of fidelity? In a way society at large is a beneficiary of fidelity. The statistics are quite clear, the best way to bring up happy, healthy, well-adjusted and non-criminal children is in a happy and faithful marriage. Any departure from the ideal results in more negative outcomes. Abusive families with domestic violence have bad outcomes, single parent families have (statistically, not inevitably) worse outcomes, so do mixed families of step children and half-siblings. But human nature as it is will always throw up circumstances in which people will have to make the best of second best, we can't legislate for perfection.

There is a natural tendency in both men and women to seek adultery. Statistically. It could be that a minority will always seek such a strategy whatever the circumstances but it is likely that most instances of adultery feature a combination of circumstances and character. For men the drive is fairly simple to understand, men can have genetic success with a sexual strategy that involves more than one female partner. This strategy can be pursued as either a form of polygyny, having more than one wife, which requires a major investment in time and resources or just a strategy of having sex with any female who comes near in circumstances that seem to avoid the threat of being killed (by anybody concerned) or being abandoned by the wife.

To a wife a man having another wife is an obvious threat: his financial resources, his time, his protection will all be compromised, if another woman is getting some there must be less available for her and her children. Whether this is a major problem depends on how good a husband he is and what the other alternatives are. A second-hand, wife, a soiled woman, is not of high value. She might be best served by putting up with a share of a good husband than having 100% of no man or 100% of a poor husband, in either sense of the word poor. If the husband is a rich sheik then settling for being one wife in a team of women all being pampered and looked after by servants is quite a reasonable prospect. However being the oldest wife of an unemployed Mormon who wants to bring home yet another fifteen year old is not a pleasant prospect.

For a woman adultery offers a totally different prospect. A woman who plays and wins will have a rich man as her provider, a strong man as her defender and champion, a poet to capture her heart, an Adonis as father of her children and a man with a penis better suited to a beast of burden as her lover. Few woman actually want multiple partners as such, but reality always seems to conspire that the best way to get what she really wants is to have more than one man. To a man therefore his wife's adultery is a major threat, he could spend his entire life working for the interests of children who are not his own, without knowing about it.

Do women have the right to have it all? Do they have the right to have it all by deception? Of course a woman has a right to want it all but surely that does not mean she has a right to have it all just because she wants it.

Women always seem more likely to risk their lives to protect their children than men. The reason is simple, men have never been as sure that any particular child is their child as women have been, at least until the latest DNA technology came along. While I am confident about the paternity of my own children I sometimes play a rather frightening game: looking at a lot of children and asking myself how many of them would I be able to say couldn't possibly be mine, taking into account the looks of their mothers. Try it some time, especially if you are a father. Scary. It is made scarier by the understanding that women are attracted to men who look similar to themselves. Try the brother and sister game, see how many married couples you can see who you could easily take for brother and sister if they were introduced as such. If the woman's husband looks similar to the woman it follows that any of her children will look quite like him (because they look like her) regardless of whether or not he is the father. Doubly scary.

It is axiomatic that a woman has the right to choose who shall be allowed to have the chance to father her children. Isn't it also about time that men had the right to know whether the children that woman claims are his are actually his? The ratchet has been pushed over a long way towards the rights of the woman and hardly anything has been done for men.

Men no longer take possession of their wife's property on marriage, but now women take possession of half of the man's property on divorce. Isn't that a little strange? What's hers is hers and stays hers, what's his is theirs, sometimes even going as far as attaching his future earnings as well: what will be his will be hers. What they have become used to sharing she can continue to share and what she brought in to the marriage she can take out. But the children will be happiest with their mother and seeing their father will only upset them. The wishes of the father are irrelevant, if he wanted to be a part of their lives he should have been a more satisfying lover and anticipated her whims so she wouldn't have wanted to leave him. It seems these days that a woman simply wanting something better is perfectly reasonable but a man wanting to see his children because he loves them is no concern of the court. A woman's whims must be upheld, a father's rights must be denied and scorned.

Is society damaged by adultery?

In some circumstances it is clear that adultery is a very bad thing for society. Adultery is a major cause of murder, especially in nations with a high incidence of handgun ownership. Murder is very expensive. In a civilized country the average prisoner usually costs more to lock up each year than the average person earns, so every prisoner is canceling out the tax yield of several households. The death penalty, at least in America, is even more expensive than life imprisonment. The idea that a murderer could ever “repay his debt to society” by being kept in prison costing more than he would be able to pay in tax in a millennium is quite laughable.

Adultery causes marriage breakup. Marriage is a great way of keeping down the costs of social services, prisons and probation. Married couples raise smarter, happier and better behaved children and look after each other in old age. Breaking up families is a bad move. If people didn't break their marriage vows fewer marriages would break. Feel free to point out any logical flaws here because I can't see any. Fidelity is something that is in the interests of the state, the society and the community.

Fidelity and Theocracy

In male dominated theocratic societies adultery is sometimes punished by the criminal law. Women who cheat on their husbands can be put to death, often by stoning. This is the punishment dictated by God, apparently. Although it may be worth pointing out that no women have been prophets, or rather no women have been accepted as prophets.

Often such laws do not punish men for adultery. It is seen as a property crime, a man's goods have been devalued and he has been shamed by his property, his wife, being used for sex by another man. It makes little difference whether the woman initiated the adultery or even was raped, proving rape under Sharia law is almost impossible. What matters is the simple biological fact, the man's property has been devalued and he demands extreme measures as recompense. Such laws are rightly regarded as barbaric and illiberal. But would it make a difference if the law was not so clearly biased in favour of men?

Adultery, at least the conventional deceptive kind, is clearly A Bad Thing. A contract has been broken. There has been deception. The interests of society (in steady marriages) have been compromised. Why don't we feel the need to get involved? I suppose the answer is simply that lawyers are so bloody expensive. By keeping the criminal law out of adultery a lot of washing dirty linen in public at the public expense is avoided. It is not that we don't care it is that we don't care enough to get involved, especially financially involved.

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