Robert Roeschlein Professor Schnell ENGL 1102 30 March 2014 Should Adultery be Illegal?

Adultery has always been frowned upon within American society but rarely have there ever been any legal repercussions for committing such an act. Any legal penalties that did exist at one point were used exclusively against women and are now seen as outdated and unused. Adultery can be seen as a personal matter that the government has no right interfering in, but can also be seen as the responsibility of the government to protect those who were the victims of infidelity. Patty Funaro from the University of Iowa discussed the history and importance of marriage law today in her Legislative Guide to Marriage Law. Here she states that in the early middle ages, marriage was only valid if sanctioned by the church. By the 14thcentury, England became the first nation to issue out married couples a marriage license. The license was used to be taxed by the government while it helped the church better document all whom were married within the local area. It was also used to monitor and make sure social classes did not mix such as commoners and nobles. As the English colonies grew in America, the colonial governments began using marriage license to their own benefits. By the time the U.S. had won their liberty from England, marriage had fallen under the jurisdiction of each state to regulate and tax marriage. Funaro continues her recap of the history of marriage by discussing how the newly forged American government began using marriage licenses to their own benefit.

Marriage licenses in America have been used to prevent polygamy, gay or incest based marriage that are still in effect today. Until recently, the south had also used such licenses to prevent interracial marriage. According to U.S. Marriage Laws, to this day governments involvement in marriage still strictly depends on the state government, in which I agree should remain the same. In Mecklenburg County, receiving a license requires one to go to their local courthouse to fill out an application and have both partners sign off on it with a witness. To officially earn the marriage license however, an application fee and a marriage tax must be paid before a couple can legally be made man and wife. Placing a tax on marriage is simply to increase government revenue and to show that they have control over who can and cannot get married. I have no problem with this, except for the fact that the government wants to regulate marriage without giving any benefit to the people. If a couple is to pay a tax and receive permission to marry from the county, then a marriage license can easily be seen as nothing more than a government contract. This contract bounds a couple together for life and if one is to break that bond by committing infidelity, then it can be seen as a violation of a government contract. Any other violation of a contract would result in some sort of penalty, so why should marriage be any different? With this said, I believe it is the governments duty to protect the bond in marriage, otherwise they have no business being involved in the regulation of marriage. Although the government's regulation of the marriage license has existed centuries before the first English colonists stepped foot onto the New World, some groups believe that marriage licenses are unlawful. The Libertarian partys platform, for example, argues that marriage is a right, not a government privilege. Michael Suede of

Libertarian News reported on certain pastors speaking out against government issued marriage license. According to these specific religious groups, marriage is a contract between the man, woman and God, and that the government is simply infringing upon their rights and attempting to replace God. One pastor stated, Such a license is defined as permission by public authority to persons who intend to marry (Suede 1), arguing that the government does not have the authority to grant marriage. Although I understand their point of view and support the idea of limited government, if these groups were to have their way, any argument for adultery to be made illegal would no longer hold any weight. With the breakout of Tiger Woods cheating scandals, CNN News brought to light a lawsuit that Woods wife may use against her husband. This lawsuit, called the "Alienation of Affection" allows for a spouse who has been cheated on to sue the paramour for up to $1million. This same lawsuit can only be used in a handful of states, including NC, and if the cheated spouse or paramour is a residence of or the act of infidelity was committed in a state that allows the lawsuit; then it can be filed. CNN also estimated that a little over 200 of these lawsuits were filed each year, but close to million dollar verdicts are not uncommon. When a NC divorce attorney was asked of how he feels of the lawsuit, he said, alienation of affection case polarizes everyone and devastates everything in its path including the children and both spouses (Drash 1). Despite such a lawsuit being seen as destructive, I feel that lawsuits work as a better form of punishment for adultery than criminal charges. This is because the victim has the option to sue and receive compensation as well as my belief that targeting someones pocket book is one of the most effective means of punishment.

Even though Alienation of Affection lawsuits are rare, finding states that claim adultery as being completely illegal is not. Just a little under half of the states in the U.S. still have adultery as illegal on the books (although any sort of enforcement of this law ceases to exist) and Colorado is one of those states that worked to repeal the law. According to Colorado law, anyone found guilty could serve a maximum of one year in prison and a $1000 fine, although jail time has not been issued out since the early 20th century. During the attempt to repeal the law, the Denver Post interviewed multiple politicians and scholars to learn their viewpoints on the law. Representative Daniel Kagan, the man who proposed the bill to begin with, claimed that it is not the governments business to be involved in people's marital status. Jonathan Turley, a legal scholar at George Washington University, backed up Kagan claiming The notion of the government policing immorality runs against the grain of our constitutional system. (Hoover 1), yet those who fought against the bill had similar beliefs. People like Representative John Kefalas didn't want to be involved in people's personal lives either, yet refused to pass a bill that made adultery legal, because it would only be supporting infidelity. The bill has since not been passed and adultery remains illegal in the state of Colorado. If the penalties sound harsh in America, some of the punishments in foreign countries are beyond approach. In David Smiths article in The Guardian, the majority of countries in Africa, including Sudan and Somalia, sentence those found guilty of cheating to stoning. Whats even worse is that these laws are specifically used against women only. Laws within the Middle East pertaining to adultery are much more civilized yet still prejudice against women. Nations like Pakistan and Saudi-Arabia have Ordinances in

place that have a maximum sentence of death to those who commit adultery. Despite the law, a death sentence has never been made, yet corporeal punishment and imprisonment sentences have been given out. India, however, has a very different set of laws pertaining to adultery. According to the Gangothri article, Adultery: Indian Legal Perspective, infidelity is defined as sex outside marriage without consent and has a maximum sentence of 5 years jail time for men only, as women cannot be prosecuted for cheating. Indian men continue to protest against these laws as they consider them gender discrimination. Europe on the other hand, has the most liberal countries in the world, all of them repealing any law claiming infidelity as illegal with the last nation, Austria, repealing the law in 1997. Even nations under communist influence claimed adultery a non-government matter. With all this said, I believe that adultery must be illegal within the United States. Yet making it criminal like many foreign countries or like the states did in the past, is not the right way to go about it. Even though I like the idea of the government remaining uninvolved in marriage all together, I think that as long as they do remain involved in the marriage business that they should consider the license a contract that has possible repercussions if the bond is broken. These repercussions should be the option for the victimized spouse to sue both he paramour and the cheating spouse and would be separate from the divorce court. This way, the government provides a way to protect those victims of infidelity and allows for such people to have the option to receive compensation for what they had to go through. However, making adultery illegal may also provide another benefit, protecting the morality of society as a whole.

The Puritan influence in the United States has had a lasting effectn the nation to this day. The more conservative beliefs have led to the U.S. being much more spiritual and have stronger moral obligations than our European cousins. These morals may have begun to erode after the Second Great Awakening in the mid to late 19th century. At this point in time for America, organized crime and political corruption began to rise and prostitution became rampant in urban areas. I theorized that with the rise in crime (especially prostitution), that adultery rates would rise and family life would begin to disintegrate. As the nation progressed and the rise of pop culture in the 1920s led to sexual promiscuity becoming more common, I would mark this decade as the beginning of another rapid rise in adultery. In my opinion, the continuing rise in adultery over the years can be directly linked to the thriving pop culture over the past century. When comparing our nation with Europe, we tend to be much more reserved then the more liberal Europeans when it comes to social aspects of our cultures. As society continues to progress though, we seem to keep a steady pace behind European way of life, slowly following in their footsteps. When looking at Europe's decreasing marriage rate and increasing divorce rate (over 60% of divorces which are caused due to adultery), it is a scary thought to think that America maybe looking at those same statistics not too far down the road from now. The problem with this is the erosion of marriage within society causes the loss of tradition, respect of religion and changes the outlook of family life Those who are not married with families, although there are many successful stories of families thriving without marriage, are still not legally bound to their wife and children. This means that with the abandonment of marriage, the threat to family life may

increase as many may not take on their responsibilities as a spouse and parent. And a weak family life can lead to the deterioration of generations to come and could inevitably lead to the downfall of an entire nation. Furthermore, marriage is a part of nearly every religion, so couples that do not participate in marriage lack their religious beliefs or have none at all. Despite everyone being free to believe as they wish, religion still plays a vital role in culture and improves one's self as a whole. When all is said and done, I believe that the question of whether or not infidelity should be illegal extends into something much deeper than simply the government getting involved in peoples personal lives. With infidelity continuing to rise without punishment, it is only one of many issues with our nation's morals and seems to be the eroding of our social standards.

Work Cited Funaro, Patty. Legislative Guide to Marriage Law. Legis.Iowa.gov. December 2005: 141. Web. https://www.legis.iowa.gov/DOCS/Central/Guides/marriage.pdf Marriage License Mecklenburg County. U.S. Marriage Laws. 2014: 1. Web.

http://www.usmarriagelaws.com/search/united_states/north_carolina/marriage_lic enses/mecklenburg_county.shtml Suede, Michael. Marriage License are a racist crime against humanity. Libertarian News. Feburary 1, 2011: 1. Web. http://www.libertariannews.org/2011/02/01/marriage-licenses-are-a-racist-crimeagainst-humanity/ Drash, Wayne. Beware Cheaters: Your Lovers Spouse Can Sue You. CNN. December 8, 2009: 1. Web. http://www.cnn.com/2009/LIVING/12/08/cheating.spouses.lawsuits/ Hoover, Tim. Bid to repeal Colorada adultery law dies. Denver Post. May 7, 2011: 1. Web. http://www.denverpost.com/ci_18013601 Smith, David. Sudanese Women sentence to death over adultery claim. The Guardian. 31 May 2012: 1. Web. http://www.theguardian.com/world/2012/may/31/sudanese-woman-stoning-deathadultery Adultery: Indian Legal Perspective. Gangothri. 10 April 2013: 1. Web. http://www.gangothri.org/?q=node/6