Adultery

==Adultery and the law==
{{anchor|Law}}
{{See also|Extramarital sex#Law}}
{{Main|Adultery laws}}
Historically, many cultures considered adultery a very serious [[crime]], some subject to severe punishment, especially for the married woman and sometimes for her sex partner, with penalties including [[capital punishment]], [[mutilation]], or [[torture]].<ref name="ReferenceA"/> Such punishments have gradually fallen into disfavor, especially in [[Western countries]] from the 19th century. In countries where adultery is still a criminal offense, punishments range from [[fine (penalty)|fine]]s to [[caning]]<ref name="The Age"/> and even capital punishment. Since the 20th century, such laws have become controversial, with most Western countries repealing them.

However, even in jurisdictions that have decriminalised adultery, adultery may still have legal consequences, particularly in jurisdictions with fault-based [[divorce]] laws, where adultery almost always constitutes a [[grounds for divorce|ground for divorce]] and may be a factor in [[property settlement]], the [[child custody|custody]] of children, the denial of [[alimony]], etc. Adultery is not a ground for divorce in jurisdictions which have adopted a [[no-fault divorce]] model, but may still be a factor in child custody and property disputes.

International organizations{{which|date=November 2020}} have called for the decriminalising of adultery, especially in the light of several high-profile [[stoning]] cases that have occurred in some countries.{{which|date=November 2020}} The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, [[Kamala Chandrakirana]], has stated that: "Adultery must not be classified as a criminal offence at all".<ref name="Ipsnews.net"/> A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offence violates women’s human rights".<ref name="DisplayNews"/>

In Muslim countries that follow [[Sharia law]] for criminal justice, the punishment for adultery may be stoning.<ref name="Punishment for adultery in Islam"/> There are fifteen<ref name="Thomson Reuters Foundation"/> countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia.<ref name="auto"/> Most countries that criminalize adultery are those where the dominant religion is Islam, and several [[Sub-Saharan Africa]]n Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines and several U.S. states.

===Punishment===
In jurisdictions where adultery is illegal, punishments vary from fines (for example in the US state of [[Rhode Island]]<ref>{{cite web|url=http://law.justia.com/codes/rhode-island/2012/title-11/chapter-11-6/chapter-11-6-2/|title=2012 Rhode Island General Laws :: Title 11 - Criminal Offenses :: Chapter 11-6 - Bigamy and Adultery :: Chapter 11-6-2 - Adultery.|access-date=2 September 2017|archive-date=2 September 2017|archive-url=https://web.archive.org/web/20170902232743/http://law.justia.com/codes/rhode-island/2012/title-11/chapter-11-6/chapter-11-6-2/|url-status=live}}</ref>) to caning in parts of Asia.<ref>{{cite web|url=https://www.independent.co.uk/news/world/asia/150-women-face-adultery-flogging-on-maldives-1757150.html|title=150 women face adultery flogging on Maldives|website=[[Independent.co.uk]]|date=22 July 2009|access-date=19 September 2017|archive-date=26 December 2018|archive-url=https://web.archive.org/web/20181226044109/https://www.independent.co.uk/news/world/asia/150-women-face-adultery-flogging-on-maldives-1757150.html|url-status=live}}</ref><ref>{{cite web|url=http://edition.cnn.com/2010/WORLD/asiapcf/02/17/malaysia.adultery.caning/index.html|title=3 women caned in Malaysia for adultery|website=CNN.com|first=Joe|last=Sterling|access-date=2 September 2017|archive-date=2 September 2017|archive-url=https://web.archive.org/web/20170902225108/http://edition.cnn.com/2010/WORLD/asiapcf/02/17/malaysia.adultery.caning/index.html|url-status=live}}</ref> In fifteen countries<ref name="Thomson Reuters Foundation"/> the punishment includes [[stoning]], although in recent times it has been legally enforced only in Iran and Somalia.<ref name="auto"/> Most stoning cases are the result of [[mob violence]], and while technically illegal, no action is usually taken against perpetrators. Sometimes such stonings are ordered by informal village leaders who have ''de facto'' power in the community.<ref>{{cite web|url=http://edition.cnn.com/2015/11/04/asia/afghanistan-taliban-woman-stoning/index.html|title=Afghan woman stoned to death over adultery accusation|publisher=CNN|author1=Jethro Mullen|author2=Masoud Popalzai|date=4 November 2015 |access-date=2 September 2017|archive-date=2 September 2017|archive-url=https://web.archive.org/web/20170902224628/http://edition.cnn.com/2015/11/04/asia/afghanistan-taliban-woman-stoning/index.html|url-status=live}}</ref> Adultery may have consequences under [[Civil law (common law)|civil law]] even in countries where it is not outlawed by the [[criminal law]]. For instance it may constitute ''fault'' in countries where the [[divorce law]] is [[Divorce#At-fault divorce|fault based]] or it may be a ground for [[tort]].

In some jurisdictions, the "intruder" (the third party) is punished, rather than the adulterous spouse. For instance art 266 of the Penal Code of South Sudan reads: "Whoever,  has  consensual  sexual intercourse  with  a  man  or woman who is and whom he or she has reason to believe to be the spouse of another person, commits the offence of adultery [...]".<ref>{{Cite web |url=http://www.wipo.int/edocs/lexdocs/laws/en/ss/ss014en.pdf |title=Archived copy |access-date=2 September 2017 |archive-date=28 August 2017 |archive-url=https://web.archive.org/web/20170828210716/http://www.wipo.int/edocs/lexdocs/laws/en/ss/ss014en.pdf |url-status=live }}</ref> Similarly, under the [[adultery law in India]] (Section 497 of the Indian Penal Code, until overturned by the Supreme Court in 2018) it was a criminal offense for a man to have consensual sexual intercourse with a married woman, without the consent of her husband (no party was criminally punished in case of adultery between a married man and an unmarried woman).

===Legal issues regarding paternity===
{{Further|Paternity law|Legitimacy (family law)}}
[[File:Jana2Navarra hlava.jpg|thumb|250 px|right|[[Joan II of Navarre]]{{snd}}her paternity and succession rights were disputed her whole life because her mother [[Margaret of Burgundy, Queen of France|Margaret of Burgundy]] was claimed to have committed adultery.]]
Historically, paternity of children born out of adultery has been seen as a major issue. Modern advances such as reliable [[contraception]] and [[DNA paternity testing|paternity testing]] have changed the situation (in Western countries). Most countries nevertheless have a legal presumption that a woman's husband is the father of her children who were born during that marriage. Although this is often merely a [[rebuttable presumption]], many jurisdictions have laws which restrict the possibility of legal rebuttal (for instance by creating a legal time limit during which paternity may be challenged{{snd}}such as a certain number of years from the birth of the child).<ref>{{cite web |url=http://www.biojuris.com/natural/3-2-0.html |title=Natural Selection in Family Law |publisher=Biojuris.com |access-date=26 February 2015 |archive-url=https://web.archive.org/web/20160304213345/http://www.biojuris.com/natural/3-2-0.html |archive-date=4 March 2016 |url-status=dead }}</ref> Establishing correct paternity may have major legal implications, for instance in regard to [[inheritance]].

Children born out of adultery suffered, until recently, adverse legal and social consequences. In [[France]], for instance, a law that stated that the inheritance rights of a child born under such circumstances were, on the part of the married parent, half of what they would have been under ordinary circumstances, remained in force until 2001, when France was forced to change it by a ruling of the [[European Court of Human Rights]] (ECtHR) (and in 2013, the ECtHR also ruled that the new 2001 regulations must be also applied to children born ''before'' 2001).<ref>{{cite web|url=http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116716#{%22itemid%22:[%22001-116716%22]}|title=HUDOC - European Court of Human Rights|work=coe.int}}</ref>

There has been, in recent years, a trend of legally favoring the right to a relation between the child and its biological father, rather than preserving the appearances of the 'social' family. In 2010, the ECtHR ruled in favor of a German man who had fathered twins with a married woman, granting him right of contact with the twins, despite the fact that the mother and her husband had forbidden him from seeing the children.<ref>[http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/d0cd2c2c444d8d94c12567c2002de990/db5e85a236de283dc1257803004974b7?OpenDocument] {{webarchive|url=https://web.archive.org/web/20140226171503/http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/d0cd2c2c444d8d94c12567c2002de990/db5e85a236de283dc1257803004974b7?OpenDocument|date=26 February 2014}}</ref>

===Criticism of adultery laws===
Laws against adultery have been named as invasive and incompatible with principles of [[limited government]].{{Citation needed|date=May 2023}} Much of the criticism comes from [[libertarianism]], the consensus among whose adherents is that government must not intrude into daily personal lives and that such disputes are to be settled privately rather than [[Prosecution|prosecuted]] and [[Sanctions (law)|penalized]] by [[public entities]]. It is also argued that adultery laws are rooted in religious doctrines; which should not be the case for laws in a [[secular state]].

Historically, in most cultures, laws against adultery were enacted only to prevent women—and not men—from having sexual relations with anyone other than their spouses,{{Citation needed|date=August 2014}} with adultery being often defined as sexual intercourse between a married woman and a man other than her husband.{{Citation needed|date=January 2016}} Among many cultures the [[punishment|penalty]] was—and to this day still is, as noted [[#Violence|below]]—[[capital punishment]]. At the same time, men were free to maintain sexual relations with any women ([[polygyny]]) provided that the women did not already have husbands or "owners". Indeed, [[Wiktionary:בעל|בעל]] (ba`al), Hebrew for ''husband'', used throughout the [[Bible]], is synonymous with ''owner''. These laws were enacted in fear of [[cuckoldry]] and thus [[sexual jealousy]]. Many indigenous customs, such as [[female genital mutilation]]<ref>[https://www.who.int/mediacentre/factsheets/fs241/en/index.html "Female genital mutilation"] {{Webarchive|url=https://web.archive.org/web/20110702174226/http://www.who.int/mediacentre/factsheets/fs241/en/index.html |date=2 July 2011 }}, World Health Organization, February 2010.</ref> and even [[menstrual taboo]]s,<ref>{{cite journal | last1 = Strassman | first1 = B.I. | year = 1992 | title = The function of menstrual taboos among the Dogon: defense against cuckoldry? | doi = 10.1007/bf02692249 | pmid = 24222401 | journal = Human Nature | volume = 3 | issue = 2| pages = 89–131 | s2cid = 25712774 }}</ref> have been theorized to have originated as preventive measures against cuckolding. This arrangement has been deplored by many modern intellectuals.

Opponents of adultery laws argue that these laws maintain social norms which justify violence, discrimination and oppression of women; in the form of state sanctioned forms of violence such as [[stoning]], [[flogging]] or [[hanging]] for adultery; or in the form of individual acts of violence committed against women by husbands or relatives, such as [[honor killings]], [[crimes of passion]], and beatings.<ref name="ohchr.org">{{cite web|url=http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672& |title=Statement by the United Nations Working Group on discrimination against women in law and in practice |work=ohchr.org |url-status=dead |archive-url=https://web.archive.org/web/20150306103836/http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672& |archive-date=6 March 2015 }}</ref><ref name="endvawnow.org">{{cite web|url=http://www.endvawnow.org/en/articles/738-decriminalization-of-adultery-and-defenses.html|title=Decriminalization of adultery and defenses|work=endvawnow.org|access-date=31 March 2014|archive-date=10 April 2014|archive-url=https://web.archive.org/web/20140410201544/http://www.endvawnow.org/en/articles/738-decriminalization-of-adultery-and-defenses.html|url-status=live}}</ref> [[UN Women]] has called for the decriminalization of adultery.<ref name="endvawnow.org"/>

An argument against the criminal status of adultery is that the resources of the law enforcement are limited, and that they should be used carefully; by investing them in the investigation and prosecution of adultery (which is very difficult) the curbing of serious violent crimes may suffer.<ref>''Suffolk law review, The Validity of Criminal Adultery Prohibitions After Lawrence v.Texas''; pg. 859 "Lack of enforcement suggests the prevailing view that police resources are better spent elsewhere."[http://suffolklawreview.org/wp-content/uploads/2006/04/Viator_Note_Final.pdf] {{Webarchive|url=https://web.archive.org/web/20140418220808/http://suffolklawreview.org/wp-content/uploads/2006/04/Viator_Note_Final.pdf|date=18 April 2014}}</ref>

Human rights organizations have stated that legislation on sexual crimes must be based on [[consent]], and must recognize consent as central, and not trivialize its importance; doing otherwise can lead to legal, social or ethical abuses. Amnesty International, when condemning stoning legislation that targets adultery, among other acts, has referred to "acts which should never be criminalized in the first place, including consensual sexual relations between adults".<ref>{{cite web|url=https://www.amnesty.org/en/for-media/press-releases/afghanistan-reject-stoning-flogging-amputation-and-other-taliban-era-punish |title=Amnesty International &#124; Afghanistan: Reject stoning, flogging, amputation and other Taliban-era punishments |access-date=4 December 2016 |url-status=dead |archive-url=https://web.archive.org/web/20140420193225/http://www.amnesty.org/en/for-media/press-releases/afghanistan-reject-stoning-flogging-amputation-and-other-taliban-era-punish |archive-date=20 April 2014 }}</ref> Salil Shetty, Amnesty International's Secretary General, said: "It is unbelievable that in the twenty-first century some countries are condoning [[child marriage]] and [[marital rape]] while others are outlawing abortion, sex outside marriage and same-sex sexual activity{{snd}}even punishable by death."<ref>{{cite web|url=https://www.amnesty.org/en/news/sexual-and-reproductive-rights-under-threat-worldwide-2014-03-06|title=Sexual and reproductive rights under threat worldwide|work=amnesty.org|access-date=8 May 2014|archive-date=6 December 2014|archive-url=https://web.archive.org/web/20141206225115/http://www.amnesty.org/en/news/sexual-and-reproductive-rights-under-threat-worldwide-2014-03-06|url-status=live}}</ref> The ''My Body My Rights'' campaign has condemned state control over individual sexual and reproductive decisions; stating "All over the world, people are coerced, criminalized and discriminated against, simply for making choices about their bodies and their lives".<ref>{{cite web|url=https://www.amnesty.org/en/library/info/ACT35/001/2014/en|title=Document - Amnesty International - Amnesty International|work=amnesty.org|date=6 March 2014 |access-date=4 December 2016|archive-date=6 November 2014|archive-url=https://web.archive.org/web/20141106033116/http://www.amnesty.org/en/library/info/ACT35/001/2014/en|url-status=live}}</ref>