Adultery, Divorce & the Criminal Law

It looks like Eliot and Silda may be staying together after all. For a couple who has long been in the public spotlight, having a hot dog together in Central Park was surely a intentional display of a marriage on the mend. Is this surprising? Is this only to be expected? The statistics on adultery in this country vary widely from as low as 20 percent to as high as 75 percent of married people having engaged in adulterous sex. Many of these adulterous acts are discovered by spouses and many marriages undergo the difficult times now being experienced by the former governor and first lady of New York.

As a family law professor, I always ask matrimonial practitioners whether in their experience, divorce can be avoided after one spouse has cheated on the other. Their answers are always the same and sound true to life: some marriages can overcome an act of adultery while some cannot. What seems to matter are the underlying reasons that led the guilty spouse to stray. If the adultery involves emotional or spiritual bonds, it is a much harder road to forgiveness. Selective forgiveness makes sense on the personal level when two people are trying to sort out their marital relationship. Does it make sense on a societal level?

Americans have long been divided on how to deal with adultery as a societal phenomenon. Interestingly, this difference of opinion has led to selective forgiveness on a societal level. For example, David Paterson succeeded Eliot Spitzer and at his first new conference, Governor Paterson revealed that he too had committed a crime in his past: the misdemeanor of adultery. Certainly there were differences on substantive, procedural and political levels between the two men’s marital mistakes. However, as the New York Times noted, it is important to recognize that both patronizing a prostitute and committing adultery are crimes and yet only Eliot Spitzer is vulnerable to criminal prosecution. Admittedly, adultery has rarely been prosecuted in New York but as Sanford Kadish warned long ago, one of the great dangers of overcriminalization is the selective enforcement of our penal laws. Selective enforcement, of course, necessarily entails selective forgiveness.

In addition to the exercise of discretion by law enforcement as they scrutinize the conduct of individuals, it is also clear that entire categories of individuals are held to higher standards of behavior. Politicians, celebrities, and professional athletes are our leaders, role models and public icons and many believe that they should suffer the wrath of the criminal law even for minor crimes of morality that would ordinarily not be prosecuted if committed by us ordinary folks. Ordinary people are privileged as society largely forgives their adulterous acts.

I want to note one final irony that results from the divided opinion on the public policy question of adultery. Although adultery is a misdemeanor in some states including New York, it is a dead criminal law that is hardly ever enforced. Despite the lack of enforcement, if either Michelle Paterson or Silda Spitzer ever sought a divorce from their husbands, it would probably be granted on the grounds of cruel and inhuman treatment. Cruelty is the most popular ground in New York State today even though there are plenty of marriages breaking up over adultery. Why is this the case?

As one practitioner explained to me recently, no decent divorce lawyer in New York would ever allow their client to admit to a criminal misdemeanor as the grounds for their divorce. Instead, he would prudently advise parties to compromise on the use of the legal fiction of cruelty with this argument about the need to avoid self-incrimination. It is ironic that criminalizing adultery has had the opposite public policy effect: instead of condemning and discouraging certain harmful conduct, it ends up providing the excuse for adulterers to cover their behavior and avoid public stigma.

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