Academic journal article Texas Law Review

Adultery: Trust and Children

Academic journal article Texas Law Review

Adultery: Trust and Children

Article excerpt

Adultery: Trust and Children

Adultery: Infidelity and the Law. By Deborah L. Rhode. Cambridge, Massachusetts: Harvard University Press, 2016. 272 pages.

Deborah Rhode writes that, while adultery is admittedly not good, it should not be criminal.1 She argues that it should not generate a tort action either, because the original purposes for the torts of alienation of affection and criminal conversation come from a time with quite different views about marriage and gender,2 while no-fault and speedy divorce today give adequate remedies to the wronged spouse.3 Further, she argues that adultery should not affect employment-as a politician or in the military-unless it directly impacts job performance.4

The materials she uses to make her case for removing all but social punishments for adultery are varied, and the authority with which she wields them is quite convincing. The historical section (Chapter 2) is particularly well done as a scholarly matter; her anecdotes (especially in Chapter 3, which discusses contemporary American law, and in Chapter 4, which deals with adultery in the military) are vivid and ample; and the constitutional law- more her field than family law-is carefully employed. Chapter 5 deals with alternative lifestyles like polygamy ("polyamorous relationships") and suggests decriminalizing them to allow those involved to become less isolated, actually giving more visibility to the possible associated harms like "underage marriage, tax fraud, and domestic violence."5 Chapter 6, like Chapter 4, deals with politicians-where infidelity may not have any direct application to job performance, but where context really matters.6 Chapter 7 discusses the international scene, where some countries tolerate extramarital affairs as completely routine,7 while others allow "honor killings" to go unpunished, causing "serious human rights abuses."8 Again, Rhode suggests decriminalizing adultery,9 and perhaps her point is that the United States should join the more tolerant Western European nations rather than seeming to follow the more repressive societies that outlaw it.10 At the end though, I was left wondering whether social disapproval, really all that is left after criminal and civil penalties are removed, would be enough to curb what she admits is a troubling practice.

My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, the destruction of trust that adultery both signals and produces does considerable damage. Second, though she certainly notes that the injured spouse has a beef against the adulterous one, and does briefly consider the harms done to children under various adultery scenarios, Rhode underplays the direct (through their own tendencies to trust or be faithful as adults) and indirect (through the likely divorce to follow and its particular nastiness) damage done to the children of adulterous marriages.

I begin with a flash tour through Rhode's very interesting and well-written book. While I present some comments from a family law or law-and-economics viewpoint, these are mostly minor quibbles. The very first page of Chapter 1 presents her argument: "[T]he United States should repeal its civil and criminal penalties for adultery."11 She reasons that the penalties are now "infrequently and inconsistently enforced" and "ill serve societal values."12 Rhode maintains that the criminal law is inappropriate because "[d]isapproval of marital infidelity has increased," obviously revealing societal values, while "support for criminal prohibitions . . . has declined" (as she later demonstrates by recent state statutory changes), and even "intermittent enforcement" is out of sync with international trends.13 Rhode then notes that "many talented leaders have paid an undue price for conduct . . . [unrelated] to their job performance."14 These summary paragraphs seem to conflate the criminal penalties twenty-one states still maintain15 and the much less frequently allowed "heartbalm" tort actions for "alienation of affection" or "criminal conversation. …

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