Welmer

According to statistics, adultery is on the rise in America. Much is made of the fact that wives are cheating nearly as much as husbands these days. Since the statistics come from polls, and women are less likely to admit to adultery than men for both cultural and practical reasons, it is likely that men and women cheat at roughly equal rates.

Adultery has always existed, but it does seem to be a growing problem. Birth control mitigates the consequences, and electronic communication widens the potential pool of affair partners. Society’s attitude toward infidelity has become so blasé that commercial services procuring affair partners are making substantial profits. Many people see affairs as a justifiable escape from the frustrations of a long-term relationship. They are, however, just as destructive to the institution of the family as ever, and it is the children, as always, who pay the heaviest price for marital dissolutions.

The proliferation of adultery may also be encouraged by the relative ease in obtaining divorce; if one gets caught one can simply pull the plug on the marriage rather than having to deal with the consequences for years after the betrayal. But in an unfortunate twist, no-fault divorces frequently result in the punishment of the victimized spouse, especially when children are involved. This represents an injustice that has resulted in many men, and some women, having to pay a heavy price for their spouse’s adultery for years after it wrecked their marriage.

The courts are right to put the interests of children first in divorce. The fathers’ rights movement has made big strides arguing that fathers are essential to children’s well-being, advancing the cause far enough to get real results from courts, which are increasingly ordering joint custody. But adultery, which is probably the single largest cause of divorce, remains rampant and often has no associated cost – sometimes it even yields benefits – for the adulterer.

In the bad old days, adultery was serious business. It violates the seventh commandment, and merited a stoning in ancient Hebrew society, and it can still bring a harsh punishment in countries that follow Islamic law. More recently in America, it meant social ostracism, frequently loss of a career and was a criminal offense in many states. Although social disapproval remains, its decriminalization has made it a minor issue, not even as serious as smoking a joint. Presidents, governors, and mayors are quickly forgiven for adultery. When someone gets in trouble over infidelity, such as a CEO or naval officer , popular opinion expresses astonishment that they could lose their jobs over such a trifling thing. In reality, of course, adultery lays waste to fragile families and breaks the homes that nurture children in addition to damaging institutional integrity.

Although the situation appears hopeless in the current climate, practical steps can be taken to raise the cost of adultery. Under current law, the family bears the entire financial and emotional burden of divorce caused by adulterous affairs. This does not have to be the case. Currently, if one spouse has an affair that results in divorce, their partner in the destruction of the marriage faces no consequences for their collaboration in the violation of marriage vows. During the divorce process, property is divided, child support is ordered, and the affair partner can conveniently avoid all the trouble that entails. This lack of legal responsibility for actions that cause profoundly negative consequences is a relic of the decriminalization of adultery, and represents a continuing injustice that must be rectified.

A penalty for adultery that extends to all parties – not only the family affected by it – should be reintroduced. Recriminalization is out of the question for now, but the civil courts have proven quite effective at handling child support, alimony and divorce settlements. Introducing another party to the divorce, one who willingly participated in the destruction of another’s marriage, would not be too complicated and would return a measure of prohibition against adultery that people would take seriously. The party who participated in an affair with one spouse could be held liable for legal fees, some punitive damages and, importantly, compensation for child support payments if the cheated spouse does not get custody.

A financial penalty for adultery would provide a very strong disincentive for outside parties to engage in adulterous affairs with married people. As the law currently stands, signing a marriage contract entails considerable risk, but destroying another’s marriage is cost-free. Of course, penalizing affair partners will not stop adultery, but it would reduce it substantially. Single men would avoid wives if they knew they’d have to pay a heavy price for getting caught in an affair. Single women would avoid married men knowing that they could be held up to shame in court by wronged wives. In affairs involving two married people, both would be forced to think hard about the double liability they might incur. Strong social disapproval would return, as the penalties quickly became folklore. There is no question that taking this measure would reduce the divorce rate as people could no longer so easily throw marriages away for passing fancies. But most importantly, it would return a measure of justice to society, filling in the gap left by hasty social change.