Adultery

• 1. Introduction

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  Adultery was called "the highest invasion of property" by England's Lord Chief Justice John Holt in a court ruling from 1707. He added that no greater provocation existed for a wronged husband. That framing captures something essential about how adultery has been understood across most of human history. The Code of Hammurabi, a Babylonian law code from around 1772 BC, prescribed drowning for adulterers. The Roman Lex Julia of 17 BC sent offenders to separate islands and confiscated part of their property. Amputation of the nose was practiced as punishment across ancient India, Egypt, Greece, Rome, and Byzantium. What is striking is not simply that these punishments existed. It is that nearly every culture on earth developed its own version, often without direct contact with the others. And nearly every culture punished women far more severely than men. Why did a near-universal prohibition produce such varied definitions? And how did a crime rooted in ancient property law come to be condemned by the United Nations as a violation of human rights?

• 2. A Question of Property

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  The Encyclopedia of Diderot and d'Alembert, published in 1751, ranked adultery second only to homicide in moral severity. It called the act "the most cruel of all thefts." That framing was not mere metaphor. It reflected a legal logic common to many cultures. The Hebrew word ba'al, used throughout the Bible to mean husband, translates directly as "owner." Scholar Michael Coogan writes that in the Biblical tradition, marriage transferred a woman from her father's property to her husband's. Adultery violated the husband's property rights. A second anxiety ran alongside the first: paternity. One early legal formulation put the concern plainly: criminal intercourse with a married woman tended to "adulterate the issue" of her innocent husband. It exposed him to raising another man's children without knowing it. The double standard that followed was severe. In early Roman law, the jus tori, the rights of the marriage bed, belonged entirely to the husband. He could legally sleep with a slave or an unmarried woman. The historian Spartianus recorded that Emperor Verus told his reproaching wife directly: "Wife is the name of dignity, not bliss." The jurist Ulpian captured the same logic from the opposite direction. He wrote: "It seems most unfair for a man to require from a wife the chastity he does not himself practice." The 1751 Encyclopedia noted the resulting legal absurdity of its era. A husband who violated conjugal trust was "not permitted" to be accused by his wife. The property logic at the heart of adultery law extended, in its most extreme form, into questions of royal succession. In England, adultery with the King's wife, his eldest son's wife, or his eldest unmarried daughter constituted high treason. Sir William Blackstone wrote that such laws existed to "guard the Blood Royal from any suspicion of bastardy."

• 3. The Law's Long Reach

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  Criminal conversation, the old English civil tort for adultery, was abolished in England in 1857. Ireland followed in 1976. These suits allowed a husband to seek financial compensation from the man who had slept with his wife. Six U.S. states still maintain this tort today. On the criminal side, the retreat from adultery laws has been slow. Austria was one of the last Western nations to decriminalize the act, doing so in 1997. Among Catholic-majority Latin American countries, Chile moved first, in 1994. Argentina followed in 1995, Brazil in 2005, and Mexico in 2011. India's Supreme Court struck down its adultery law on the 27th of September 2018. Minnesota kept the offense on its statute books until 2023. As recently as 2001, Virginia prosecuted attorney John R. Bushey for adultery. The case ended in a guilty plea and a fine of $125. Even where criminal law has retreated, civil consequences remain. In fault-based divorce jurisdictions, adultery almost always constitutes grounds for divorce. In France, children born of adulterous unions once inherited only half of what legitimate children received from the married parent. That disparity stood until 2001, when the European Court of Human Rights required France to reform its law. In 2013, the same court ruled those new regulations must also apply to children born before 2001. In 2010, the European Court ruled in favor of a German man who had fathered twins with a married woman. The court granted him contact rights with the twins over the objections of both the mother and her husband.

• 4. Sacred Texts and Doctrines

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  Leviticus 20:10 prescribes the death penalty for adultery in the Hebrew Bible. Jewish law, however, surrounded that sentence with procedural requirements so demanding it could almost never be applied. Two witnesses of good character had to testify. The accused had to have been warned immediately before the act. And the Sanhedrin court had to be convened in its chamber within the Temple in Jerusalem. Once the Temple was destroyed, the sentence became technically unreachable. When the death penalty had been applied, strangulation was the usual method. A daughter of a Kohen faced a penalty Scripture specifies as pouring molten lead down the throat. A betrothed but unmarried woman faced stoning. Judaism and Christianity share the Seventh Commandment, "Thou shalt not commit adultery," but have interpreted it differently. In the Hebrew Biblical tradition, a man's own marital status was irrelevant. What determined adultery was whether the woman was married to someone else. The Book of Mormon reinforces the prohibition: the prophet Abinadi cites the Ten Commandments when accusing King Noah's priests of sexual immorality. The Church of Jesus Christ of Latter-day Saints has extended the definition further. It covers all sexual relationships outside of marriage, regardless of either party's marital status. Islam calls the offense zina, an Arabic term covering both premarital and extramarital intercourse. The Quran warns: "Do not go near adultery. It is truly a shameful deed and an evil way." Under Islamic legal tradition, four witnesses of good character must have been present during the act. Islamic scholars have noted that anyone present and watching such an act was arguably not of good moral character. That near-impossible evidentiary standard was designed, at least in part, to protect against slander. A Pew Research Center survey found 82% support for stoning as punishment for adultery in Egypt, 82% in Pakistan, and 70% in Jordan. In Indonesia, 42% favored it, reflecting more divided opinion. According to a hadith attributed to Muhammad, an unmarried person convicted of adultery faces flogging 100 times; a married person faces stoning.

• 5. Eastern Traditions

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  Hymn 4.5.5 of the Rigveda calls adultery papa, meaning evil or sin, making it one of the oldest surviving written condemnations of the act. Other Vedic texts group adultery alongside murder, incest, anger, and evil thoughts. Yet the same Rigveda describes a woman's eagerness to meet her lover with something close to neutrality. One hymn asks the gods to protect the embryo of a pregnant wife who sleeps with her husband and other partners. The Hindu textual tradition was never of one voice. The Manusmriti, also known as the Laws of Manu, addresses the subject at length. Verse 4.134 declares adultery a heinous offense. Yet the Manusmriti classifies it as a "secondary sin" rather than a "grievous sin." The consequence is the loss of caste standing, not execution. Verses 8.362 and 8.363 take an unexpected position. Sexual relations with the wife of a traveling performer carry no sin. The penalty is reduced to a small fine. Intent and consent shape punishments throughout the text. Rape is not treated as adultery for the woman. The Arthashastra of Kautilya holds that if a wronged husband forgives his wife, both she and her lover are to be set free. The Kamasutra devotes at least fifteen sutras, numbered 1.5.6 through 1.5.20, to listing reasons a man is permitted to seduce a married woman. Scholar Wendy Doniger notes this reads partly as a tactical manual. The affair, the text suggests, predisposes the woman to assist the man and to work against his enemies. Yet the Kamasutra's chapter on adulterous liaisons concludes with a clear warning. Adultery pleases only one side of a marriage and causes harm to the other. Buddhism's Digha Nikaya describes adultery as one link in a chain of immorality and suffering. The Pali text story of Thera Soreyya presents a teaching attributed to the Buddha. Men who commit adultery suffer hell for hundreds of thousands of years. They are then reborn one hundred successive times as women. Only after earning sufficient merit through complete devotion to their husbands in those lives can they return as men to pursue monastic liberation. Scholar Jose Ignacio Cabezon observes that Buddhist texts offer no exemption for adulterous relationships under any circumstances. The Linga Purana offers a counterpoint found in few other ancient texts. The sage Sudarshana instructed his wife Oghavati to offer sexual hospitality to guests. When he returned home to find her with a visiting mendicant, he told them to continue. The mendicant was revealed to be Dharma, the lord of righteous conduct, who blessed the couple for upholding social law.

• 6. Punishment's Human Cost

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  Ibn Fadlan, an Arab explorer who traveled among the pagan Oghuz Turks in the tenth century, noted that adultery was "unknown among them." He described what happened when it was discovered. Two trees were bent together. The offender was tied to both, then the trees released, tearing the person apart. Among the Aztecs, wives caught in adultery were occasionally impaled, though the more usual punishment was stoning. In medieval Vienna, the penalty was death by impalement. Fifteen countries currently authorize stoning as lawful punishment for adultery. In recent times it has been legally carried out only in Iran and Somalia. Most stonings elsewhere are acts of mob violence, technically illegal, with perpetrators rarely prosecuted. Sometimes the order comes from village leaders who hold informal local authority. In 2011, a fourteen-year-old girl in Bangladesh died after being publicly flogged. She had been accused of having an affair with a married man. The order came from villagers acting under their interpretation of Sharia law. Honor killings follow a related logic. A survey in Diyarbakir, Turkey found that 37% of respondents said a woman who committed adultery should be killed. Another 21% said her nose or ears should be cut off. In Amman, Jordan's capital, 33.4% of teenagers surveyed approved of honor killings. The United Nations reported in 2002 that such killings had taken place in Egypt, Jordan, Lebanon, Morocco, Pakistan, Syria, Turkey, and Yemen. They had also been recorded in immigrant communities in France, Germany, and the United Kingdom. Syria's law, until 2009, permitted a husband to kill or injure a wife caught committing adultery. The law changed that year, but only to require a minimum prison sentence of two years in the case of killing. Philip IV of France pursued the suspicion of adultery at the highest levels of royal power. He imprisoned all three of his daughters-in-law. Two of them, Margaret of Burgundy and Blanche of Burgundy, were charged with adultery. The third, Joan of Burgundy, was imprisoned for knowing of their behavior. The two men accused as their lovers were executed immediately after arrest. The daughter born to Philip's eldest son was Joan II of Navarre. Her paternity and succession rights were disputed for the rest of her life.

• 7. The Push for Repeal

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  Kamala Chandrakirana leads the United Nations expert body on laws that discriminate against women. She has stated: "Adultery must not be classified as a criminal offence at all." The UN Working Group on discrimination against women has declared: "Adultery as a criminal offence violates women's human rights." These positions mark a significant turn in international legal consensus. Critics of adultery laws have argued from several directions. Libertarians hold that the state has no place regulating private consensual conduct between adults. Others point to the religious origins of many adultery laws, arguing they are unsuitable foundations for legislation in secular states. The deeper structural critique is historical. Laws against adultery were nearly always written to constrain women rather than men. Many indigenous customs, including female genital mutilation and menstrual taboos, have been theorized to have originated as measures against cuckoldry. These arrangements depended on treating a woman's body as a man's territory to govern. Amnesty International's Secretary General Salil Shetty called it "unbelievable" that in the twenty-first century some countries were still "condoning child marriage and marital rape." He pointed to others still outlawing abortion, sex outside marriage, and same-sex activity, in some cases with the death penalty. Amnesty International has grouped adultery among "acts which should never be criminalized in the first place." The organization places "consensual sexual relations between adults" in that category. The Council of Europe, through Recommendation Rec(2002)5, called on member states to "preclude adultery as an excuse for violence within the family." UN Women has continued to call for full decriminalization. Alfred Kinsey's American studies found that 50% of men and 26% of women had engaged in extramarital sex at least once during their lifetimes. The World Health Organization found that women in violent relationships faced an increased risk of HIV infection. They had difficulty negotiating safe sex with their partners or seeking medical advice if they believed they had been exposed.