Criticism of adultery laws Political arguments Laws against adultery have been named as invasive and incompatible with principles of limited government (see Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate) chapter 2). Much of the criticism comes from libertarianism, the consensus among whose adherents is that government must not intrude into daily personal lives and that such disputes are to be settled privately rather than prosecuted and penalized by public entities. It is also argued that adultery laws are rooted in religious doctrines; which should not be the case for laws in a secular state. Opponents of adultery laws regard them as painfully archaic, believing they represent sanctions reminiscent of nineteenth-century novels. They further object to the legislation of morality, especially a morality so steeped in religious doctrine. Support for the preservation of the adultery laws comes from religious groups and from political parties who feel quite independent of morality, that the government has reason to concern itself with the consensual sexual activity of its citizens … The crucial question is: when, if ever, is the government justified to interfere in consensual bedroom affairs?Weissler, Benjamin. "Government and the Bedroom ." July 13, 2012. Yale Undergraduate Law Review. There is a history of adultery laws being abused. In Somerset, England, a somewhat common practice was for husbands to encourage their wives to seduce another man, who they would then sue or blackmail, under laws (for examples see Criminal conversation) prohibiting men from having sex with women married to other men.Ley, David. "Kinky Cuckolding Fetish Goes Mainstream ". Psychology Today. 24 June 2010.%DIFDELCMD < %DIFDELCMD < %%% Historical context Historically, in most cultures, laws against adultery were enacted only to prevent women—and not men—from having sexual relations with anyone other than their spouses, with adultery being often defined as sexual intercourse between a married woman and a man other than her husband. Among many cultures the penalty was—and to this day still is, as noted below—capital punishment. At the same time, men were free to maintain sexual relations with any women (polygyny) provided that the women did not already have husbands or "owners". Indeed, בעל (ba`al), Hebrew for husband, used throughout the Bible, is synonymous with owner. These laws were enacted in fear of cuckoldry and thus sexual jealousy. Many indigenous customs, such as female genital mutilation"Female genital mutilation" , World Health Organization, February 2010. and even menstrual taboos, have been theorized to have originated as preventive measures against cuckolding. This arrangement has been deplored by many modern intellectuals. Discrimination against women Opponents of adultery laws argue that these laws maintain social norms which justify violence, discrimination and oppression of women; in the form of state sanctioned forms of violence such as stoning, flogging or hanging for adultery; or in the form of individual acts of violence committed against women by husbands or relatives, such as honor killings, crimes of passion, and beatings. UN Women has called for the decriminalization of adultery. A Joint Statement by the United Nations Working Group on discrimination against women in law and in practice in 2012, stated: The United Nations Working Group on discrimination against women in law and in practice is deeply concerned at the criminalization and penalization of adultery whose enforcement leads to discrimination and violence against women. Concerns exist that the existence of "adultery" as a criminal offense (and even in family law) can affect the criminal justice process in cases of domestic assaults and killings, in particular by mitigating murder to manslaughter,With regard to the situation in the United States: "Moreover, setting to one side criminal prosecutions for adultery, there are numerous other ways in which the law deems adulterous conduct to be legally relevant. (...) Furthermore, a recognized "heat of passion" defense to a charge of murdering one’s spouse or paramour—which will typically reduce the crime to voluntary manslaughter—is either finding them in the act of adultery, recently being informed of their act of adultery, or in some jurisdictions, having reason to believe that they committed adultery." or otherwise proving for partial or complete defenses in case of violence. These concerns have been officially raised by the Council of Europe and the UN in recent years. The Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence states that member states should: (...) "57. preclude adultery as an excuse for violence within the family". UN Women has also stated in regard to the defense of provocation and other similar defenses that "laws should clearly state that these defenses do not include or apply to crimes of 'honour', adultery, or domestic assault or murder."%DIFDELCMD < %DIFDELCMD < %%% Use of limited resources of the criminal law enforcement An argument against the criminal status of adultery is that the resources of the law enforcement are limited, and that they should be used carefully; by investing them in the investigation and prosecution of adultery (which is very difficult) the curbing of serious violent crimes may suffer.Suffolk law review, The Validity of Criminal Adultery Prohibitions After Lawrence v.Texas; pg. 859 "Lack of enforcement suggests the prevailing view that police resources are better spent elsewhere." The importance of consent as the basis of sexual offenses legislation Human rights organizations have stated that legislation on sexual crimes must be based on consent, and must recognize consent as central, and not trivialize its importance; doing otherwise can lead to legal, social or ethical abuses. Amnesty International, when condemning stoning legislation that targets adultery, among other acts, has referred to "acts which should never be criminalized in the first place, including consensual sexual relations between adults". Salil Shetty, Amnesty International's Secretary General, said: "It is unbelievable that in the twenty-first century some countries are condoning child marriage and marital rape while others are outlawing abortion, sex outside marriage and same-sex sexual activityeven punishable by death." The My Body My Rights campaign has condemned state control over individual sexual and reproductive decisions; stating "All over the world, people are coerced, criminalized and discriminated against, simply for making choices about their bodies and their lives".
Criticism of adultery laws Laws against adultery have been named as invasive and incompatible with principles of limited government (see Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate) chapter 2). Much of the criticism comes from libertarianism, the consensus among whose adherents is that government must not intrude into daily personal lives and that such disputes are to be settled privately rather than prosecuted and penalized by public entities. It is also argued that adultery laws are rooted in religious doctrines; which should not be the case for laws in a secular state. %DIFDELCMD < %DIFDELCMD < %%% Historically, in most cultures, laws against adultery were enacted only to prevent women—and not men—from having sexual relations with anyone other than their spouses, with adultery being often defined as sexual intercourse between a married woman and a man other than her husband. Among many cultures the penalty was—and to this day still is, as noted below—capital punishment. At the same time, men were free to maintain sexual relations with any women (polygyny) provided that the women did not already have husbands or "owners". Indeed, בעל (ba`al), Hebrew for husband, used throughout the Bible, is synonymous with owner. These laws were enacted in fear of cuckoldry and thus sexual jealousy. Many indigenous customs, such as female genital mutilation"Female genital mutilation" , World Health Organization, February 2010. and even menstrual taboos, have been theorized to have originated as preventive measures against cuckolding. This arrangement has been deplored by many modern intellectuals. Opponents of adultery laws argue that these laws maintain social norms which justify violence, discrimination and oppression of women; in the form of state sanctioned forms of violence such as stoning, flogging or hanging for adultery; or in the form of individual acts of violence committed against women by husbands or relatives, such as honor killings, crimes of passion, and beatings. UN Women has called for the decriminalization of adultery. %DIFDELCMD < %DIFDELCMD < %%% An argument against the criminal status of adultery is that the resources of the law enforcement are limited, and that they should be used carefully; by investing them in the investigation and prosecution of adultery (which is very difficult) the curbing of serious violent crimes may suffer.Suffolk law review, The Validity of Criminal Adultery Prohibitions After Lawrence v.Texas; pg. 859 "Lack of enforcement suggests the prevailing view that police resources are better spent elsewhere." Human rights organizations have stated that legislation on sexual crimes must be based on consent, and must recognize consent as central, and not trivialize its importance; doing otherwise can lead to legal, social or ethical abuses. Amnesty International, when condemning stoning legislation that targets adultery, among other acts, has referred to "acts which should never be criminalized in the first place, including consensual sexual relations between adults". Salil Shetty, Amnesty International's Secretary General, said: "It is unbelievable that in the twenty-first century some countries are condoning child marriage and marital rape while others are outlawing abortion, sex outside marriage and same-sex sexual activityeven punishable by death." The My Body My Rights campaign has condemned state control over individual sexual and reproductive decisions; stating "All over the world, people are coerced, criminalized and discriminated against, simply for making choices about their bodies and their lives".
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Political arguments
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Opponents of adultery laws regard them as painfully archaic, believing they represent sanctions reminiscent of nineteenth-century novels. They further object to the legislation of morality, especially a morality so steeped in religious doctrine. Support for the preservation of the adultery laws comes from religious groups and from political parties who feel quite independent of morality, that the government has reason to concern itself with the consensual sexual activity of its citizens … The crucial question is: when, if ever, is the government justified to interfere in consensual bedroom affairs?Weissler, Benjamin. "Government and the Bedroom ." July 13, 2012. Yale Undergraduate Law Review.
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There is a history of adultery laws being abused. In Somerset, England, a somewhat common practice was for husbands to encourage their wives to seduce another man, who they would then sue or blackmail, under laws (for examples see Criminal conversation) prohibiting men from having sex with women married to other men.Ley, David. "Kinky Cuckolding Fetish Goes Mainstream ". Psychology Today. 24 June 2010.
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Historical context
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Discrimination against women
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A Joint Statement by the United Nations Working Group on discrimination against women in law and in practice in 2012, stated:
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The United Nations Working Group on discrimination against women in law and in practice is deeply concerned at the criminalization and penalization of adultery whose enforcement leads to discrimination and violence against women.
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Concerns exist that the existence of "adultery" as a criminal offense (and even in family law) can affect the criminal justice process in cases of domestic assaults and killings, in particular by mitigating murder to manslaughter,With regard to the situation in the United States: "Moreover, setting to one side criminal prosecutions for adultery, there are numerous other ways in which the law deems adulterous conduct to be legally relevant. (...) Furthermore, a recognized "heat of passion" defense to a charge of murdering one’s spouse or paramour—which will typically reduce the crime to voluntary manslaughter—is either finding them in the act of adultery, recently being informed of their act of adultery, or in some jurisdictions, having reason to believe that they committed adultery." or otherwise proving for partial or complete defenses in case of violence. These concerns have been officially raised by the Council of Europe and the UN in recent years. The Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence states that member states should: (...) "57. preclude adultery as an excuse for violence within the family". UN Women has also stated in regard to the defense of provocation and other similar defenses that "laws should clearly state that these defenses do not include or apply to crimes of 'honour', adultery, or domestic assault or murder."
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Use of limited resources of the criminal law enforcement
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The importance of consent as the basis of sexual offenses legislation