Actually, It Is a Crime

Adultery in America Is an Unfinished History of Morals and Misdemeanors Washington Post By Liza Mundy Sunday, February 22, 1998; Page W14

In the early, dizzying days of the Clinton-Monica Lewinsky sex scandal, Sally Berra, an Arlington social studies teacher, courageously took it upon herself to sort through the situation with her eighth-grade American history class. It was a delicate task -- trying to help her kids understand the facts and issues involved, without utterly destroying any idealism they might have about America and its leaders. Officially the day's topic was "impeachment," but by necessity, the discussion also included talk of adultery, and one of Berra's students predicted that the president "is going to be impeached because he had an affair with that woman."

Berra corrected him. If the president were to be impeached, she explained, the crime would consist of lying under oath or encouraging Lewinsky to do so. It wouldn't consist of having a sexual affair with a woman not his wife.

The student was amazed. But an affair is adultery, he pointed out. "Isn't that illegal?"

Berra tried to break the news gently. Adultery, she said, is a moral offense, but not a criminal one.

"I felt awful," she said afterward. "I felt I had crushed his innocence, which was something I didn't want to do."

The same point -- that adultery isn't a crime but lying under oath is -- had been made repeatedly in the commentary-sodden days since the scandal broke. CNN legal commentator Greta Van Susteren was one of the first to parse the niceties, saying that any crime the president might have committed would consist of perjury or suborning perjury or obstructing justice, and that an "extramarital affair . . . is not illegal." NBC correspondent Pete Williams made the same point the next day, reporting that "unsavory as the sexual accusations are, the potential violations of law involve only what he may have said, not what he may have done."

The declarations gathered the force of absolute truth, and so it's hardly surprising that Berra would have shared them with her students. The only trouble is, the declarations are wrong.

Because -- just for the record -- adultery is, in fact, a crime. Berra's student's instincts were inarguably right: An "extramarital affair" is illegal in the District of Columbia, where adultery is a misdemeanor with a maximum penalty of $500 or 180 days in jail. It's a misdemeanor as well in Virginia, Maryland and more than 20 other states, and a felony in Idaho, Massachusetts, Michigan, Oklahoma and Wisconsin.

And though the law is rarely enforced, it's not never enforced: As recentlyas 1980, a Massachusetts couple were spotted having sex in a van and, when they admitted they were married but not to each other, arrested for adultery. The man admitted his guilt and paid a fine of
$50, but the woman appealed, invoking the same right of privacy defined in landmark contraception and abortion cases. The court rejected the argument and upheld the conviction.

Closer to home, in Maryland, there's a bill in the legislature that, far from striking the state's archaic adultery law from the books, would expand the criminal definition of adultery to include extramarital affairs with partners of the same sex: If, for example, a woman leaves her husband for another woman, she could be convicted of adultery and fined the penalty of $10. This bill wasn't introduced by an anti-gay constituency; just the opposite, it was introduced to assist couples seeking to dissolve their marriage when one partner comes out of the closet. In Maryland, adultery is the only grounds for an immediate divorce; other grounds, such as desertion and separation, require a waiting period. So the effect of the bill would be to ensure that homosexual liaisons could also be used as grounds for  obtaining a quick and, equally important, cheap divorce.

Even as it stands, adultery law already affects a huge number of divorce cases, in a profound if entirely unintended way. Since adultery is a crime, an adulterous spouse can refuse to testify in the course of a divorce case, invoking the Fifth Amendment right against self-incrimination. In other words, precisely because adultery is a crime, the adulterous spouse can avoid admitting his or her transgression, even in civil proceedings. Since adultery still affects alimony and property settlements in some states, including Maryland, the perverse effect of the law is to "protect guiltyspouses in divorce proceedings," points out Karen Czapanskiy, a law professor at the University of Maryland.

Do guilty spouses know this? Do they make use of this loophole to avoid paying more alimony or to get more money in a settlement? According to Maryland family law attorney Alan Meiselman, "Absolutely. All the time. Every day."

So okay, adultery is a crime, and this little-known fact affects far more ordinary Americans than one might think. It also revives the student's initial question: If it were proved that Clinton had an affair with Lewinsky or anyone else while president, would this rise to the level of the "high crimes and misdemeanors" identified in the Constitution as criteria for impeachment?

A couple of things complicate that question: For one thing, unconfirmed reports that emerged in the second wave of scandal stories alleged that Lewinsky described having only oral sex with the president. In the wildly unlikely event of an adultery prosecution, the president's lawyers could hone in on this technicality. Some states explicitly define adultery as sexual intercourse, while others, such as Kansas, have written their codes to include oral sex. In the District, adultery is undefined, which means the old-fashioned definition of intercourse alone probably applies. But the general definition may be evolving: In a Maryland divorce case, Montgomery County Circuit Court Administrative Judge Paul Weinstein recently ruled that adultery should be understood to include other sexual acts. After all, the judge sensibly pointed out, the essence of adultery is that it "breaches the trust" between a married couple and sends a terrible message to the children, regardless of the precise nature of the sexual act involved.

But -- this is the point, really, that Van Susteren and other media commentators were making -- the president would never be impeached  for adultery even if he were convicted in a D.C. courtroom. According to A.E. Dick Howard, a constitutional scholar at the University of Virginia law school, the framers intended high crimes and misdemeanors to be understood loosely rather than technically, to mean high-level acts of corruption or abuse of power that almost certainly wouldn't include sex, even with an intern. "Crimes and misdemeanors," Howard says, is a sort of old-fashioned redundancy. Like "hue and cry," it's a way of being poetic and dramatic without broadening the category to include low-level crimes.

Even so, the adultery law has a significance, in the president's situation, for reasons that nobody has really touched upon. Doubtless most people recall Hillary Clinton's famous reference, in the couple's
1992 campaign appearance on "60 Minutes," to a "zone of privacy," a private sexual life to which even politicians and their spouses should be entitled. Behind her words lay the central, widely accepted notion that only in squalid modern America would an individual's philandering, even a president's, be dragged into the public square.

The shared assumption here seems to be that once upon a time in America, people's sex lives were their own business -- and that only now, thanks to the bloodsucking media and overzealous prosecutors and avaricious ex-girlfriends and, perhaps, feminists intent on making every innocent remark a sexual harassment offense, are people's sex lives being ruthlessly scrutinized. Why, the commentators imply, at any moment somebody might pass an adultery law!

In fact, we may be living in the most sexually private times America has ever known. Sex laws -- laws against adultery, sodomy, fornication -- are leftovers of a time when a zone of sexual privacy was wholly unrecognized: In the Bay Colony of Massachusetts, adultery was a capital crime, punishable by death. While juries often returned with lesser convictions for "lewd and lascivious" behavior or "having a bastard child," the point is that people's sex lives were very much a public matter.

"The idea that the community would have a stake in an individual's sexual conduct was much more accepted" in previous eras, says Katharine Silbaugh, a professor at Boston University School of Law and the co-author of A Guide to America's Sex Laws. She points out that adultery laws were invoked mostly against women, since one of the goals was to ensure the legitimacy of children. Then as now, men were accorded more license, but that's not the same thing as saying they were accorded more privacy. The legal notion of sexual privacy wasn't introduced until this century, and while the courts have been willing to acknowledge sexual privacy in marriage and between unmarried persons, they've never accorded the same privilege to extramarital sex acts.

So, despite the media circus, the truth is that the enormous number of Americans who insist that the president's sex life is his and Hillary's business are doing so based on a fairly modern understanding. Here, one imagines the further confusion of a thoughtful student: If adultery is immoral, the child wondered, why isn't it illegal? And since it is illegal, one can imagine him asking, why don't we either take the law seriously or have the legislative courage and moral honesty to abolish the law? One salutes teachers like Sally Berra for attempting to help kids figure this out; most adults, it seems, left before the buzzer sounded.

Liza Mundy is a staff writer for the Magazine.

?Copyright 1998 The Washington Post Company