The Scarlet Letter, or Three Mere Quibbles


Review of Adultery: Infidelity and the Law, by Deborah L. Rhode

Cambridge: Harvard University Press, 2016

This book, Adultery, is the first in a series to be published over the next several years. Each, to be written by a law professor or other prominent ethicist, will take one of the original Ten Commandments and advocate for an elimination of civil laws against the conduct prohibited by that commandment. Next up, later this year, is keeping the Sabbath Day holy (all remaining Blue Laws to be smashed into smithereens), and then, scheduled for early 2017, the bar on graven images.

No, no, no. No. Just kidding. Still, not a bad idea, what? Human beings have been trying to weasel out of all ten of the things for a long, long time, since . . . well, since Deuteronomy. Admittedly, revocation of laws that parallel numbers six (shalt not kill) and eight (not steal) might be tough sells – although inroads are certainly being made into each, by legislatures, by executives, and by the least dangerous branch. But the rest of them are surely, in this day and time, surplusage at best. For example, take the thing about not coveting. Whole industries exist to convince you to covet, to shame you for not coveting enough, to make you believe not only that coveting is not wrong, but that it’s great! Think how many people would be put out of work.

Anyway, and no kidding this time, Deborah L. Rhode is firmly of the belief that laws against adultery should be repealed, and she tells why in her new book, “Adultery: Infidelity and the Law.”

This is not a new idea. The drafters of the Model Penal Code circa 1955, she says, recommended that states abolish laws against adultery, pointing to the lack of deterrent value and the rare and erratic enforcement. And this is true today, as well: much of what seems to get Rhode’s goat is arbitrariness. “Enforcement of criminal prohibitions,” she says, putting her argument in an alliterative nutshell, “has been infrequent, intrusive, idiosyncratic, and ineffectual, and should be unconstitutional.”

Yet criminalization of adultery remains a part of a number of state codes, and so do civil causes of action such as alienation of affection (permitted by six states) and criminal conversation (another six), the latter of which, as Professor Rhode points out, involves neither a crime nor a conversation. (It’s an action brought by one spouse against the other’s paramour.) The treatment in the states varies widely – a tribute, one might charitably say, to federalism and the idea of states as legal laboratories. In some states adultery is a misdemeanor, in some a felony. Penalties range, she says, from a $10 fine, as in Maryland, to life imprisonment, as in Michigan (though the latter assertion seems suspect).

Adultery first presents a short and serviceable history of the common law of adultery, mostly culled from a few secondary sources. When the text strays from those sources, there tends to arise a certain lack of intellectual rigor that infects the whole book. “With the separation of church and state following the American Revolution,” Rhode writes, “and the decline in the power of religious authorities, moral offenses became a less central concern.” In that one sentence, there are a couple of very dubious assumptions (and a dubious conclusion); they stop the reader in his tracks, but go blithely unexplained.

The rest of the book sets forth various arguments for abolition or curtailment of adultery laws in various contexts, including the military, "alternative lifestyles" (swinging and open marriage, polygamy), and internationally. Sometimes Adultery makes good, if obvious, points: yes, sexual assault is a major problem in the military, and, yes, penalties for adultery under Sharia law can be horrific. Rhode's ideas for solutions, however, are mostly limited to the hortatory: "alternative lifestyles should receive greater social and legal tolerance." "Resources that are now expended on adultery investigations [in the military] should be redirected to more serious cases of sexual assault." (Can't have both?)

And this amusing bromide: "In order to maintain respect and serve as appropriate role models, politicians should behave responsibly in their personal as well as their professional lives." Right. This comes at the conclusion of what is surely the book’s weakest chapter, concerning philandering American politicians, and about how we should cut them some slack, so to speak. “Our nation has a limited supply of gifted leaders,” says Rhode, and these exalted personages, these statesmen, will be discouraged from seeking office, knowing that they will be hounded by the press, or hounded out of office, or both, if they are caught cheating. “Context” is everything here, she says: Compare Richard Nixon, a faithful husband, with Franklin Roosevelt, not a faithful husband. Get it? FDR good, Nixon bad, so adultery is, in the context, meaningless. Her argument is exactly that subtle and that discerning – which is to say, not very. One need not be especially cynical to say that our nation may have "a limited supply of gifted leaders," but it has an unlimited supply of hack pols, and if the odd one or two prefers, say, Argentina to Appalachia, well, then, good riddance.

To her credit Rhode gives a nod to some of the arguments for keeping morals laws on the books, such as that expressed by Georgetown's Paul Rothstein:

Just because something is done doesn’t mean that people want the law to reflect the baseness of human nature. They want the law to be aspirational and set forth our finest ideals. If we believe in marriage, and if the cement of that is loyalty and fidelity within a unit, then adultery does threaten that.

Or, as another generation's law professor, Thurman Arnold, said, in a slightly more jaded take, some criminal laws are "unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals."

As Rhode notes, Justice Scalia, in dissent, said that Lawrence v. Texas, the 2003 case that made homosexual sodomy a constitutional right, signaled the end of all morals legislation. Adultery doesn't go so far as to advocate that, but almost: Rhode is arguing, not just for a repeal of adultery laws, but that "courts should get out of the business of monitoring extramarital conduct altogether."

In one southeastern Ohio county, a shopkeeper who allows goats to rut on the sidewalk in front of his store risks a fifteen-dollar fine for the first offence, a forfeiture of fifteen percent of his stock-in-trade for the second. Every state has silly vestigial laws like this, ones that do no harm and no good, but provide useful listicle fodder for content-providing editors looking for yuks.

And then there are myriad laws enacted by legislatures -- real laws, with real consequences -- that subsequently sit there on the books, often with corrosive results, and which, for whatever reason, are virtually impossible to repeal. No one has demonstrated the stultifying effect of this phenomenon on our economic and legal culture, at least for the general audience, better than the writer and lawyer Philip K. Howard.

Don’t adultery laws fall somewhere in between those two? Unlike the first, adultery laws really do serve a purpose, at least an aspirational one; unlike the latter, there is no urgent need to repeal them. Or, if there is such a need, it requires a more convincing argument than Adultery. Which is all that needs to be said about this book. Nevertheless, a reviewer can’t help but add a quibble or three.

First quibble: What gives with the title, and what gives with the subtitle? “Adultery” would be a fine title for the book, "Adultery and the Law" even better -- perfect in fact. Why throw “infidelity” in there? The two words are not synonymous, not in the law or otherwise: adultery is a species of infidelity, but not vice versa. The faithless servant with his hand in the master’s till is guilty of infidelity whether or not he has his hand under the mistress's skirts.

Moreover, “infidelity” has a negative connotation lacking (oddly enough) in "adultery." These days, "adultery" is an almost benign term, almost neutral. But Rhode tends to conflate the terms, to use them (as she does in her subtitle) interchangeably, as in “The consequences of infidelity vary widely. Many adulterers report considerable satisfaction . . .”

This raises the interesting question: can you have adultery without infidelity? Apparently Rhode thinks so: in open marriages (or “polyamory”), which she discusses at length, sex with other partners is part of the definition of the thing -- consent of both partners is a given. Whether consent matters to Rhode’s argument as a whole is not really addressed. In other words, should legal treatment of adultery-by-consent be the same, or different, as when a cheated-upon partner does not consent? There are potential negative ramifications in the latter instance, but Rhode deals with those mostly by citing statistics, or polls, concerning such things as jealousy and possible adverse effects on children.

Rhode’s book is not a brief in favor of adultery, by any means. Her position on the matter appears to mirror a curious dichotomy that she refers to a couple of times: a great majority of people think adultery is wrong and, simultaneously, a great majority of people think that laws against adultery are wrong. (This is true, moreover, of many countries in the world, the lone cited exception being Russia, where the great-great-great-grandchildren of Anna Karenina are, again according to polls, much more tolerant of out-of-marriage sex than the rest of the world.)

Second quibble: As Rhode shows, "adultery" is a term that is a little bit ambiguous -- but only a little. Early on, the word meant sexual intercourse between a married woman and a man not her husband. The derivation, therefore, came from the idea that the results of such activity could "adulterate" a family blood line. (Sex between a married man and an unmarried woman constituted the "lesser offense" of fornication.) Nowadays adultery means sex between a married person and someone not her -- or his -- spouse.

But whatever adultery means, or requires, it has to involve sex, and sex and humor go together. So it is a little bit disconcerting that in a book, the central subject of which is (or depends upon) sex, the writing is so bloodless, so tepid. No harmless but amusing double entendres, no wistful musing on the poignant tristesse of the human condition, no tribute to vive la difference . . . no nothing, not in French or any other language, either. There's no meat on the bones of Rhode's prose.

At one point, Rhode shows how American courts used to be quite willing to excuse (or allow mitigation of) killings by husbands who discovered their wives in the adulterous act, on the grounds of temporary insanity or otherwise. This was America's "unwritten law," a prime beneficiary of which was someone she calls "a New York Congressman, Daniel Edgar Sickles."

Yes, Dan Sickles was for a time a New York congressman, but surely he deserves a fuller description than that. In fact he was one of the most rollicking and outrageous characters in nineteenth-century American history, as well as an indefatigable adulterer who spurned his wife -- he treated her meanly and shamefully -- when she tried the same sin. Among his many other exploits, he, as a Union General, either was instrumental in winning the Battle of Gettysburg, or almost lost it singlehandedly -- the matter is still being debated -- and he left his right leg there, at the Peach Orchard, after it was blown off by a Confederate cannonball. In the immortal summation of the writer and historian Shelby Foote,

Thus did old Dan Sickles leave the war, to proceed in time to other fields of endeavor, including a well-publicized liason with the deposed nymphomaniac Queen of Spain.

There is precisely one attempt at humor in Adultery -- not the author's, really, but that's no matter. At the beginning of Chapter 8, "Conclusion," she repeats a Henny Youngman-type gag, a good one, and, since it's the only funny line in the whole book, it would be unfair for a mere review to spoil the surprise.

Third quibble: The first sentence in the book is this:

            “Adultery,” said Anthony Burgess, “is the most creative of sins.”

The reader is naturally interested in knowing where that quotation comes from, especially since Burgess was incredibly prolific. Perhaps it's from his splendid autobiography, Little Wilson and Big God? That book was chock full of adultery, his and his wife's. A remarkable amount of it, really. In their case, it was almost as if adultery was the point of the marriage -- a case of adultery without infidelity (to answer the question asked earlier in this review, two quibbles ago). Or his big hit "A Clockwork Orange," maybe? You won't know from the endnote, which says, not very helpfully,

Anthony Burgess, quoted in Kate Figes, Our Cheating Hearts: Love and Loyalty, Lust and Lies (London: Virago, 2013), 4.

The authority that is being invoked, the weight and purpose behind the quotation, is the English writer Anthony Burgess. It's not relevant, in this context, that Anthony Burgess was quoted in a book by Kate Figes (notwithstanding that her subtitle shows her to be an author altogether as adept at alliteration as Rhode).

Sometimes there's no sourcing at all. At the very end of the book is a quotation given, and attributed, thusly:

“Adultery," said Vladimir Nabokov, "is a most conventional way to rise above the conventional.”

Whence, the curious reader wonders? Lolita? Unlikely. The Vane Sisters? There’s adultery in that story, isn’t there? One of the Vane sisters sleeps with her married professor, or her married boss, or something like that? Or one of the early Russian novels?

None of the above. In fact the source is not Nabokov at all, but the internet, where a faux Nabokov-ism appears in multiple sources. The real quotation is not from any Nabokov fiction, but from his lecture on one of the great adulteresses in literature, Madame Bovary:

Her exotic daydreams do not prevent her from being small-town bourgeois at heart, clinging to conventional ideas or committing this or that conventional violation of the conventional, adultery being a most conventional way to rise above the conventional; and her passion for luxury does not prevent her from revealing once or twice what Flaubert terms a peasant hardness, a strain of rustic practicality.

So: the book’s version of what Nabokov said is off, but pretty close, and to take the author to task for a minor, mostly harmless misquotation like that, one would have to be as pedantic as . . . as . . . as pedantic as the unnamed narrator of The Vane Sisters, a "snob and a prig," as the other Vane sister, Cynthia, calls him.

On the other hand: if you’re going to provide an endnote citation for most every other authority; if you’re going to invoke the name, and the wit, of Nabokov, among the very greatest of twentieth-century writers (and himself something of a pedant, though an extremely funny one), even for a throwaway mot; if you’re going to put the words within quotation marks; – if you’re going to do all this, then -- well, then you ought to take the trouble to go to, and read, the original source, and get the thing right.

(It was Sybil -- Sybil Vane -- and it wasn't her professor or her boss, it was an instructor at the college she attended.)

(The law about goats in southeastern Ohio? A fabrication.)

(Sybil killed herself. So did Madame Bovary. So did Anna Karenina. And so, come to think of it, did the adulterous heroine of a 2015 novel that Professor Rhode cites, for some reason, a couple of times: Hausfrau by Jill Alexander Essbaum. If not in the same league as Tolstoy, Flaubert, and Nabokov, still, it's a fine novel, worth a read.)  

(In any event, beware: adultery has been part of the Decalogue since Deuteronomy for a reason.)

Posted on 6 July 2016

MARK GAMIN is a Cleveland lawyer and critic.