Of Rats and Men: Taking Marital Infidelity Seriously

Posted on December 14th, 2009 by Katherine Franke

sanfordComplaint 1This has been a tough period for marriage.  It’s been getting it from both sides: unmarried gay people trying to batter down the door, and married straight people, well, men, behaving very badly.

Let’s review:

Last Friday, Jenny Sanford filed for divorce from her husband Marshall (Mark) Sanford, governor of the state of South Carolina, on the grounds that he had committed adultery.  As everyone with a heartbeat knows, Governor Sanford is in no position to deny the grounds for the divorce since he has admitted publicly on multiple occasions that he had had an affair with, indeed, is in love with Maria Belen Chapur, his soul mate.

Then there’s Tiger Woods, who even people on Mars now know has been a total run around.  It seems that despite being happily married he has had sex on what seems like a daily basis with many women – sometimes paying for the sex, sometimes not.  Unlike Sanford, Woods has been rather less loose-lipped about his extra-marital exploits.  All we know from him – via a formal statement released on his website – is that he is profoundly sorry for the pain that his infidelity has caused his wife, children and fans.  Most of the women he supposedly slept with described their interactions with Woods as “just sex” (here and here for example), while a couple others (Jamie Jungers and Jammie Grubbs) report that there was something more going on, maybe even love.

Then there’s John Edwards, whose nYoung bookasty business will be headline news again in February when the tell-all book, The Politician, by his former aid Andrew Young will be released, and will provide us with all the gory details of Edwards’ affair with Rielle Hunter that he conducted while his wife Elizabeth was being treated for the second time for cancer, how Hunter became pregnant, and how Edwards paid Young to falsely cover for him by saying Rielle’s baby was his (Young’s).

Most likely, Jenny Sanford will do very well in her divorce settlement with Mark.  Should Elin and Tiger Woods divorce, the pre-nup entitles her to many millions of dollars, and the end of the Edwards marriage will be quite costly for John.

But if we really cared about marriage, as do many defenders of the institution, then arguing for large pay-outs to the wives who have been betrayed by their philandering husbands shouldn’t be enough – after all, it just makes divorce more attractive.  The marriage defenders ought to be out there demanding a greater penalty for the despicable behavior of Sanford, Woods and Edwards.  Remember, according to the New York Court of Appeals – men who like sex with women need the discipline of marriage and adultery laws to tame their heterosexual urges. See Hernandez v. Robles.

Or put a bit more strongly: if marriage is so sacred and so fundamental to the very fabric of society such that it must maintain its traditional form and cannot withstand modernization by opening up to same-sex couples (as many courts and opponents of marriage equality have argued), alright then.  You want marriage in its traditional form, you should get marriage in its traditional form.

That means prosecuting Mark Sanford criminally for adultery, because in South Carolina adultery is a crime against morality and decency.  So too, John Edwards has admitted to a class 2 misdemeanor under North Carolina’s Criminal Law § 14-184 criminalizing fornication and adultery.  Last, but by no means least, Tiger Woods is surely subject to criminal prosecution for not only for multiple counts of adultery under the state’s criminal law, but also for serial “lewd and lascivious behavior” as well.

I had the same thoughts about Eliot Spitzer, back when the U.S. Attorney decided not to prosecute him for any crimes related to the interstate purchase of sex and/or the ways in which he structured his payments for sex. Why didn’t Robert Morganthau, the Manhattan District Attorney prosecute him for adultery since it remains a crime in New York as well?

Of course, I argue for the robust criminal enforcement of adultery laws somewhat facetiously – I am not generally a supporter of regulating sex through criminal law.  But I must confess no small measure of enhanced schadenfreude-esque pleasure at the thought of these fellas being taken away in ‘cuffs in states that are adamant in their defense of the institution of marriage as a sacred bond between a man and a woman.


  1. Gender & Sexuality Law Blog » Blog Archive » Of Rats and Men …: asty business will be headline news again.. http://bit.ly/7IVLIM

  2. sex and marriage Gender & Sexuality Law Blog » Blog Archive » Of Rats and Men … http://ow.ly/169lhC

  3. Of Rats and Men: Taking Marital Infidelity Seriously http://ff.im/-cTkix

  4. re: adultery being a criminal offense in SC:

    Sanford didn’t commit adultery in the state of SC – ergo, no case, nor could it be used as the grounds for impeachment.

    And since you seem to delight in the idea of prosecuting men for adultery, I find it curious you don’t seem to mention, or take similar glee in the idea of, any women who have cuckolded their husbands.

    Better perhaps for society if we all learn the difference between the public’s right to know and it’s need to know. None of us needed to know the details of any of these peoples’ lives, nor do we have the right to know.

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