Margaret Marks at Transblawg explores the lexical semantics and legal status of adultery across cultures. Well, at least in England and Wales by comparison to New Hampshire. She quotes the Oxford Dictionary of Law:
adultery. An act of sexual intercourse between a male and female not married to each other, when at least one of them is married to someone else. Intercourse for this purpose means penetration of the vagina by the penis; any degree of penetration will suffice (full penetration is not necessary). … in addition to the adultery, the petitioner must show that she or he finds it intolerable to live with the respondent.
and observes that "adultery is not usually investigated to that degree - the respondent usually signs a confession, and evidence by a private detective certainly doesn’t substantiate the degree of penetration. However, in English law, there is the alternative ground of divorce of ‘unreasonable behaviour’ with no worse consequences."
Marks also explains that "unreasonable behavior" is shorthand for "behaviour by the respondent that the petitioner cannot reasonably be expected to put up with." She tells us that "[h]omosexual relationships are not adultery, but they can be unreasonable behaviour (not actually unreasonable, but such that the other spouse has grounds for divorce)."
This is a curious bit of adjectival semantics: a homosexual relationship is "not actually unreasonable [behavior]", but would be construed as "unreasonable behavior" for the purposes of a divorce case. Is this just because the legal definition is not the ordinary language definition? Or is it because reasonableness is always relative to an evaluator and a situation? Some behavior can seem reasonable to me and not to you, or reasonable in the shower and distinctly eccentric in the grocery store; and the two dimensions interact, so that you and I might have quite different ideas of what is reasonable in a grocery store. Or in a marriage.
Alternatively, is the point that behavior always carries its context with it, so to speak? It's certainly hard to tell where behavior stops and context takes over -- it's plausible that (say) belting out "Wild Thing" in the shower and in the cereal aisle are actually different behaviors, one reasonable and the other not. And then there's the "be expected" part: expected by whom? by the judge? by the petitioner's friends and relations? by the community at large?
Lexical semantics is confusing, and in a legal context it's both more complicated and more consequential. I suppose that lawyers and semanticists learn how to come to clear conclusions about these things -- I'm glad I'm just a simple phonetician.
[A quibble: the title of Margaret Marks' post ("Definition of adultery in U.S. divorce law") may have a failing presupposition. Since divorce, like marriage, is a matter of state rather than federal law, in some sense there is no such thing as "U.S. divorce law," unless the phrase is construed to mean "the divorce laws of the various states of the U.S." Marks is so careful in her investigation of the facts, and so precise in her use of language, that I'm sure that's what she meant :-).]
Posted by Mark Liberman at November 12, 2003 05:14 AM