All About Adultery, BDSM, and Divorce

I recently came across a whole bunch of crazy historical trivia, involving the laws around adultery, BDSM, and divorce. Here are some of the quotes that made me gasp (mostly from Wikipedia):

On Adultery

As of 2019, adultery remains a criminal offense in 19 states, but prosecutions are rare. Although adultery laws are mostly found in the conservative states (especially Southern states), there are some notable exceptions such as New York, Idaho, Oklahoma, Michigan, and Wisconsin consider adultery a felony, while in the other states it is a misdemeanor.

Penalties vary from a $10 fine (Maryland) to four years in prison (Michigan). In South Carolina, the fine for adultery is up to $500 and/or imprisonment for no more than one year (South Carolina code 16-15-60), and South Carolina divorce laws deny alimony to the adulterous spouse.

In Florida adultery (“Living in open adultery”, Art 798.01) is illegal; while cohabitation of unmarried couples was decriminalized in 2016.

Under South Carolina law adultery involves either “the living together and carnal intercourse with each other” or, if those involved do not live together “habitual carnal intercourse with each other” which is more difficult to prove.

In Alabama “A person commits adultery when he engages in sexual intercourse with another person who is not his spouse and lives in cohabitation with that other person when he or that other person is married.”

In some Native American cultures, severe penalties could be imposed on an adulterous wife by her husband. In many instances she was made to endure a bodily mutilation which would, in the mind of the aggrieved husband, prevent her from ever being a temptation to other men again. Among the Aztecs, wives caught in adultery were occasionally impaled, although the more usual punishment was to be stoned to death.

The Code of Hammurabi, a well-preserved Babylonian law code of ancient Mesopotamia, dating back to about 1772 BC, provided drowning as punishment for adultery.

Amputation of the nose – rhinotomy – was a punishment for adultery among many civilizations, including ancient India, ancient Egypt, among Greeks and Romans, and in Byzantium and among the Arabs.

In England and its successor states, it has been high treason to engage in adultery with the King’s wife, his eldest son’s wife and his eldest unmarried daughter. The jurist Sir William Blackstone writes that “the plain intention of this law is to guard the Blood Royal from any suspicion of bastardy, whereby the succession to the Crown might be rendered dubious.”

Adultery was a serious issue when it came to succession to the crown. Philip IV of France had all three of his daughters-in-law imprisoned, two (Margaret of Burgundy and Blanche of Burgundy) on the grounds of adultery and the third (Joan of Burgundy) for being aware of their adulterous behaviour. The two brothers accused of being lovers of the king’s daughters-in-law were executed immediately after being arrested.

Until 2018, in Indian law, adultery was defined as sex between a man and a woman without the consent of the woman’s husband. The man was prosecutable and could be sentenced for up to five years (even if he himself was unmarried) whereas the married woman cannot be jailed.

In Southwest Asia, adultery has attracted severe sanctions, including death penalty. In some places, such as Saudi Arabia, the method of punishment for adultery is stoning to death. Proving adultery under Muslim law can be a very difficult task as it requires the accuser to produce four eyewitnesses to the act of sexual intercourse, each of whom should have a good reputation for truthfulness and honesty. The criminal standards do not apply in the application of social and family consequences of adultery, where the standards of proof are not as exacting.

Adultery is no longer a crime in any European country. Among the last Western European countries to repeal their laws were Italy (1969), Malta (1973), Luxembourg (1974), France (1975), Spain (1978), Portugal (1982), Greece (1983), Belgium (1987), Switzerland (1989), and Austria (1997).

In most Communist countries adultery was not a crime. Romania was an exception, where adultery was a crime until 2006, though the crime of adultery had a narrow definition, excluding situations where the other spouse encouraged the act or when the act happened at a time the couple was living separate and apart; and in practice prosecutions were extremely rare.

English common law defined the crime of seduction as a felony committed “when a male person induced an unmarried female of previously chaste character to engage in an act of sexual intercourse on a promise of marriage.” A father had the right to maintain an action for the seduction of his daughter (or the enticement of a son who left home), since this deprived him of services or earnings.

In more modern times, Frank Sinatra was charged in New Jersey in 1938 with seduction, having enticed a woman “of good repute to engage in sexual intercourse with him upon his promise of marriage. The charges were dropped when it was discovered that the woman was already married.”

Buddhist Pali texts narrate legends where the Buddha explains the karmic consequences of adultery. For example, states Robert Goldman, one such story is of Thera Soreyya. Buddha states in the Soreyya story that “men who commit adultery suffer hell for hundreds of thousands of years after rebirth, then are reborn a hundred successive times as women on earth, must earn merit by “utter devotion to their husbands” in these lives, before they can be reborn again as men to pursue a monastic life and liberation from samsara.

According to Muhammad, an unmarried person who commits adultery or fornication is punished by flogging 100 times; a married person will then be stoned to death. A survey conducted by the Pew Research Center found support for stoning as a punishment for adultery mostly in Arab countries; it was supported in Egypt (82% of respondents in favor of the punishment) and Jordan (70% in favor), as well as Pakistan (82% favor), whereas in Nigeria (56% in favor) and in Indonesia (42% in favor) opinion is more divided, perhaps due to diverging traditions and differing interpretations of Sharia.

The Roman Lex Julia, Lex Iulia de Adulteriis Coercendis (17 BC), punished adultery with banishment. The two guilty parties were sent to different islands (“dummodo in diversas insulas relegentur”), and part of their property was confiscated. Fathers were permitted to kill daughters and their partners in adultery. Husbands could kill the partners under certain circumstances and were required to divorce adulterous wives.

Durex’s Global Sex Survey found that worldwide 22% of people surveyed admitted to have had extramarital sex. In the United States Alfred Kinsey found in his studies that 50% of males and 26% of females had extramarital sex at least once during their lifetime. Depending on studies, it was estimated that 26–50% of men and 21–38% of women, or 22.7% of men and 11.6% of women, had extramarital sex. Other authors say that between 20% and 25% of Americans had sex with someone other than their spouse. Three 1990s studies in the United States, using nationally representative samples, have found that about 10–15% of women and 20–25% of men admitted to having engaged in extramarital sex.

The Standard Cross-Cultural Sample described the occurrence of extramarital sex by gender in over 50 pre-industrial cultures. The occurrence of extramarital sex by men is described as “universal” in 6 cultures, “moderate” in 29 cultures, “occasional” in 6 cultures, and “uncommon” in 10 cultures. The occurrence of extramarital sex by women is described as “universal” in 6 cultures, “moderate” in 23 cultures, “occasional” in 9 cultures, and “uncommon” in 15 cultures.

Traditionally, many cultures, particularly Latin American ones, had strong double standards regarding male and female adultery, with the latter being seen as a much more serious violation.

Adultery involving a married woman and a man other than her husband was considered a very serious crime. In 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man’s wife was “the highest invasion of property” and claimed, in regard to the aggrieved husband, that “a man cannot receive a higher provocation” (in a case of murder or manslaughter).

The Encyclopedia of Diderot & d’Alembert, Vol. 1 (1751), also equated adultery to theft writing that, “adultery is, after homicide, the most punishable of all crimes, because it is the most cruel of all thefts, and an outrage capable of inciting murders and the most deplorable excesses.”

On BDSM

The United States Federal law does not list a specific criminal determination for consensual BDSM acts. Some states specifically address the idea of “consent to BDSM acts” within their assault laws, such as the state of New Jersey, which defines “simple assault” to be “a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense”.

Mutual combat, a term commonly used in United States courts, occurs when two individuals intentionally and consensually engage in a fair fight, while not hurting bystanders or damaging property. There is not an official law that forbids mutual combat in the United States. There have been numerous cases where this concept was successfully used in defense of the accused. In some cases, mutual combat may nevertheless result in killings.

Oregon Ballot Measure 9 was a ballot measure in the U.S. state of Oregon in 1992, concerning sadism, masochism, gay rights, pedophilia, and public education, that drew widespread national attention. It would have added the following text to the Oregon Constitution:

All governments in Oregon may not use their monies or properties to promote, encourage or facilitate homosexuality, pedophilia, sadism or masochism. All levels of government, including public education systems, must assist in setting a standard for Oregon’s youth which recognizes that these behaviors are abnormal, wrong, unnatural and perverse and they are to be discouraged and avoided.

Dildos or any object used for “the stimulation of human genital organs” cannot be made or sold in Alabama. The Anti-Obscenity Enforcement Act says that anyone caught with such tools could face a fine up to $20,000, a one-year jail sentence or 12-months doing hard labor.

Florida bans “lewd and lascivious behavior,” which is defined as a situation where “any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together.” The misdemeanor is punishable by a fine of up to $500. In Mississippi, an unmarried couple caught living together “whether in adultery or fornication” can face up to six months in jail and/or a $500 fine.

In 2003, the U.S. Supreme Court deemed a Texas state law that banned the practice of anal and oral sex between same-sex couples as unconstitutional. Despite the ruling, a sizable list of states, including Texas, still have anti-sodomy laws on the books.

Louisiana’s “crime against nature” statute prohibits the “the unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal.” The state legislature in April failed to pass a bill that would have repealed the law except for human-on-animal relations.

Other states that have some form of anti-sodomy laws include Kansas, Oklahoma, Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, and Utah, according to the Human Rights Campaign. Virginia repealed its ban in March.

On Divorce

Today, every state plus the District of Columbia permits no-fault divorce, though requirements for obtaining a no-fault divorce vary. California was the first U.S. state to pass a no-fault divorce law. Its law was signed by Governor Ronald Reagan, a divorced and remarried former movie actor, and came into effect in 1970. New York was the last state to pass a no-fault divorce law; that law was passed in 2010.

Prior to the advent of no-fault divorce, a divorce was processed through the adversarial system as a civil action, meaning that a divorce could be obtained only through a showing of fault of one (and only one) of the parties in a marriage. This required that one spouse plead that the other had committed adultery, abandonment, felony, or other similarly culpable acts. However, the other spouse could plead a variety of defenses, like recrimination (essentially an accusation of “so did you”). A judge could find that the respondent had not committed the alleged act or the judge could accept the defense of recrimination and find both spouses at fault for the dysfunctional nature of their marriage. Either of these two findings was sufficient to defeat an action for divorce, which meant that the parties remained married.

Before no-fault divorce was available, spouses seeking divorce would often allege false grounds for divorce. Removing the incentive to perjure was one motivation for the no-fault movement.

In the States of Wisconsin, Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado and California, a person seeking a divorce is not permitted to allege a fault-based ground (e.g. adultery, abandonment or cruelty).

In some states, requirements were even more stringent. For instance, under its original (1819) constitution, Alabama required not only the consent of a court of chancery for a divorce (and only “in cases provided for by law”), but equally that of two-thirds of both houses of the state legislature. This requirement was dropped in 1861, when the state adopted a new constitution at the outset of the American Civil War. The required vote in this case was even stricter than that required to overturn the governor’s veto in Alabama, which required only a simple majority of both houses of the General Assembly.

These requirements could be problematic if both spouses were at fault or if neither spouse had committed a legally culpable act but both spouses desired a divorce by mutual consent. Lawyers began to advise their clients on how to create legal fictions to bypass the statutory requirements. One method popular in New York was referred to as “collusive adultery”, in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a “mistress” obtained for the occasion. The wife would then falsely swear to a carefully tailored version of these facts in court (thereby committing perjury). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced. Specifically, they report that “states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives’ suicide rates and a 30 percent decline in domestic violence.”

The Code of Hammurabi (1754 BC) declares that a man must provide sustenance to a woman who has borne him children, so that she can raise them:

If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.

In the 1970s, the United States Supreme Court ruled against gender bias in alimony awards and, according to the U.S. Census Bureau, the percentage of alimony recipients who are male rose from 2.4% in 2001 to 3.6% in 2006. In states like Massachusetts and Louisiana, the salaries of new spouses may be used in determining the alimony paid to the previous partners.

Some of the possible factors that bear on the amount and duration of the support are:

Factor

Description

Length of the marriage or civil union

Generally, alimony lasts for a term or period. However, it will last longer if the marriage or civil union lasted longer. A marriage or civil union of over 10 years is often a candidate for permanent alimony.

Time separated while still married

In some U.S. states, separation is a triggering event, recognized as the end of the term of the marriage. Other U.S. states do not recognize separation or legal separation. In a state not recognizing separation, a 2-year marriage followed by an 8-year separation will generally be treated like a 10-year marriage.

Age of the parties at the time of the divorce

Generally, more youthful spouses are considered to be more able to ‘get on’ with their lives, and therefore thought to require shorter periods of support.

Relative income of the parties

In U.S. states that recognize a right of the spouses to live ‘according to the means to which they have become accustomed’, alimony attempts to adjust the incomes of the spouses so that they are able to approximate, as best possible, their prior lifestyle.

Future financial prospects of the parties

A spouse who is going to realize significant income in the future is likely to have to pay higher alimony than one who is not.

Health of the parties

Poor health goes towards need, and potentially an inability to support oneself. The courts are disinclined to leave one party indigent.

Fault in marital breakdown

In U.S. states where fault is recognized, fault can significantly affect alimony, increasing, reducing or even nullifying it. Many U.S. states are ‘no-fault‘ states, where one does not have to show fault to get divorced. No-fault divorce spares the spouses the acrimony of the ‘fault’ processes, and closes the eyes of the court to any and all improper spousal behavior. In Georgia, however, a person who has an affair that causes the divorce is not entitled to alimony.

Some social justice factoids

Starting on a brief personal note…

I’m a bit disappointed with myself for being absent from this blog for the past few weeks. In a Reddit AMA last week, my favorite blogger said that the limiting factor on his productivity is the amount of time he has in a day. This to me is an ideal that I wish I could always be at. The limiting factor on my productivity is almost always my mental capacity to avoid the infinite potential sources of short-term gratification, and to motivate myself to do the things that I get deeper and more long-lived satisfaction out of. Writing this blog is one of those things. My capacity to enforce mental discipline is pretty correlated with my overall state of mind and mood. I think you can actually probably fairly reliably track my mental health by just looking at how often I’m posting here!

I’m also disappointed because I have been thinking about a great many interesting things that deserve posts. I like the idea of using this blog as a faithful recording of my intellectual life, and having discontinuities doesn’t help with this. Much of what I’ve been thinking about over the past few weeks is related to meta-ethics, but it also goes more broadly into the nature of philosophy in general. I hope to write up some posts on these soon.

In the meantime, I’ve also been compiling some interesting factoids I’ve recently encountered related to social justice. Here they are, with sources!

Race

  • Bias against blacks in the justice system can be found in sentencing and in arrests for drug use, but not in arrest rates for violent crimes, police shootings, prosecution rates, or conviction rates. Source.
  • Juries in the Deep South were commonly all-white up until the 1986 case Batson v Kentucky (where loopholes that allowed exclusion of blacks from juries were closed). (from Just Mercy, p. 60)
  • Black Americans graduate from high school at the same rate as white Americans (92.3% vs 95.6%). Source.
    • In 1968, these numbers were 54.4% and 75%.
    • Percentage of college graduates age 25 to 29: 22.8% and 42.1%. (19.3% gap)
  • White adults who don’t graduate high school, don’t get married before having children, and don’t work full time have much greater median wealth than comparable black and Latino adults. Source.
    • Consumption habits can’t explain the wealth gap: white households spend more than black households of comparable incomes.
    • The median white single parent has 2.2 times more wealth than the median black two-parent household and 1.9 times more wealth than the median Latino two-parent household.
  • Poverty rates among African Americans have declined substantially: 34.7% in 1968 to 21.4% in 2016. Source.
    • Among whites: 10% in 1968 to 8.8% in 2016.
  • Great table showing the change in socioeconomic circumstances of blacks and whites in the US from 1968 to 2018: (Source)  
    • Most strikingly in that table… Median household wealth is 10 times higher for white Americans than black Americans (but it used to be 20 times higher).

Gender

  • There is a 7% unexplained wage gap between men and women in the US. Source.
    • Controlling for college major selection, occupational segregation, hours worked, unionization, education, race, ethnicity, age, and marital status.
  • Female leaders are evaluated slightly more negatively than equivalent male leaders (controlling for leadership style). Source.
    • The discrepancy is more pronounced for autocratic leadership styles, and vanishes for democratic leadership styles.
  • Most anthropologists hold there are no known societies that are/were unambiguously matriarchal. Source.
  • Experiments show that women value temporal flexibility relatively more than men, and men value income growth relatively more than women. This is the most powerful explanation of the wage gap. Source.
    • Right after college, wages are pretty similar between men and women, and the wage gap appears as time passes, indicating that ‘innate’ differences aren’t hugely at play (including bargaining ability and temperament).
    • 75% of the wage gap is due to differences within occupations, and only 25% across occupations.
    • Among the top-paying occupations (salary ≥ $60K), the within-occupation corrected pay gaps are biggest where there’s lots of self-employment (explained by self-employment being more demanding).
  • Symphony orchestras introduced blind auditions in the ‘90s, which served as a natural experiment that found significant gender bias against women. Source.
    • The analysis found that in a blind audition for preliminary rounds, the same woman was 9.3% more likely to be hired (from 19.3% to 28.6%), and the same man is 2.3% less likely to be hired.
    • For final rounds, the same woman was 14.8% more likely to be hired in a blind audition (from 8.7% to 23.5%).
    • Introduction of blind auditions also caused an explosion of female auditions.
  • The rate of false reporting for sexual assault is in the range of 2-8%. Source.
  • Estimates of the prevalence rate of campus sexual assault in the US vary hugely, from .61% to 27% of female students, depending on survey definitions and methodology. Source.
  • The percentage of trans men that report lifetime suicide attempts is 46%, trans women is 42%, LGB adults is 10-20%, and among the overall US population is 4.6%. Source.
    • Suicide attempt rates are lower (by about 9%) among trans women that are perceived by others as women, but are the same among trans men.

Other

  • “The IAT is a noisy, unreliable measure that correlates far too weakly with any real-world outcomes to be used to predict individuals’ behavior.” Source.
    • Many early studies on IAT as a predictor of discriminatory behavior had serious methodological problems, including falsification of data by an “overzealous undergraduate”.
    • IAT has a test-retest reliability of .55 on a scale from 0 to 1.
    • Meta-analyses of the IAT-behavior link show that race IAT scores are weak predictors of discriminatory behavior.
    • IAT tests done on fictional races that are identified as one oppressed and the other privileged show “implicit bias” against the oppressed group.
    • More noise in the data predictably biases the IAT score downwards
  • When people hear stereotyping is normal, they may do more of it. Source.
  • The “few antibias trainings that have been proven to change people’s behavior” look at bias as a habit that can be broken. The Prejudice and Intergroup relations lab at UW Madison has had promising results with these type of trainings. Source.

Some takeaways: A lot of the concerns of the social justice movement are clearly very valid and rooted in real issues of societal inequalities that have been handed down to us by previous generations. That said, however, there is a good degree of subtlety required in the analysis of race and gender issues that is missing in the mainstream social justice movement.

The oft-cited 23% gender gap is misleading to say the least, and the actual percentage due to discrimination is unclear but something less than 7%. The focus the Black Lives Matter movement puts on racially biased police shootings is unjustified, and the focus would be better placed on disparate sentencing and drug arrests. And more generally, the overall trends in racial inequality in the United States look extremely positive in virtually every dimension.

It also looks like current methods at identifying and intervening on things like implicit bias and stereotyping leave a lot to be desired. This has some serious implications for questions about actual practical solutions to issues of racism and sexism… even if we acknowledge their existence and seriousness, this does not mean that we should jump on board with any plausible-sounding diversity training program. The question of how to solve these issues is highly nontrivial and deserves a lot of careful attention.