Adultery in the army

[at marie a. failinger]

A more apt analogy is negligent/intentional infliction of emotional
distress (in terms of harm to the family) and prostitution (in terms of
harm to society's notion of appropriate sexuality, or to the partner in
those cases in which one party to the adultery is
in a better bargaining position than his partner, like an unconscionable
contract where the bargaining vulnerability is affection or love.)

A symbolic harm justification would raise equality concerns, since we do
not criminally punish others who do not live up to social notions about
appropriate sexual/family behavior (i.e., absent fathers).

A tangible harm justification would seem to raise similar concerns, if
other intentional inflictions creating equal harm are not similarly
punished.   One might, of course, argue that the risk of extreme emotional
distress in an adultery situation is much higher than in other intentional
infliction cases we do not punish.

But then, we don't punish all equal harms equally at the criminal law
(compare, e.g., assault/battery with child/spouse abuse) nor do we seem
to punish equally those persons who seem equally evil, so
what else is new?

On Tue, 25 Mar 1997, Sanford Levinson wrote:

> I note that several army officers have been subjected to courts martial for
> committing adultery (in addition to charges of sexual harassment, rape,
> etc.).  I am curious as to what the "liberals" on this list think of this.
> Are their secular reasons for criminalizing adultery?  Justice Blackmun, in
> Bowers, argued basically that adultery is breach is contract (and thus
> claimed that protecting Hardwick would not require invalidating laws
> prohibiting adultery).  That may be a bad thing, but one of the things one
> learns in, say, Bailey v. Alabama, is that it is unconstitutional to
> criminalize breach of contract.  If the answer is that, damn it, adultery is
> immoral (and not merely an efficient breach), then why isn't it equally
> legitimate to drive out of the army people who violate any other item of
> "conventional" morality, including, obviously, engaging in gay or lesbian sex?
>
> Sandy Levinson
>
> ------------------------
> Sanford Levinson
> B.U. Law School
> EMail: levinson at bu.edu
> ------------------------
>