Tuesday, April 29, 2008


How come hitting someone is a criminal offence, but breaking a covenant obligation to your spouse isn't, even though the latter does far more damage and causes far more pain?


Murray said...

Why? Whom have you hit?

John said...

Just watching some TV where one person had jilted another severely; they hit them when they next met and were therefore at risk of being charged with assault.

Anonymous said...

If we made divorce a crime, it would make battered wives even more hesitant to split with their husbands, and that would cause even more damage.

John said...

I actually meant infidelity / abandonment without good cause.

Anonymous said...

Yes, but one situation can often be made to look like another, and it would need a judge to sort it out. If someone's getting battered and/or receiving constant threats, they may not always think rationally, so they may be frightened of a court case against them even if there's no actual danger of them getting convicted.

It's another threat that can be used by a bastard husband, even if it's a rubbish one.

John said...

True, but so is rape. But that doesn't seem to be an even halfway decent argument for decriminalising it.

To put my question another way - why is the marriage covenant seen legally as less binding than a business contract?

Daniel Hill said...

Regarding your original question, one reason why hitting someone is a criminal offence and infidelity isn't is intention. Strictly, only hitting someone with intent to hurt is a criminal offence (though one may be reckless). By contrast, most adulterers don't commit adultery in order to hurt their spouses, and with those that do commit adultery with this intent the intent is usually hard to prove.

I think that the main reason, however, is the same as the reason why it is legal to make fun of someone in words even though this can cause far more pain than a punch. (Speaking personally, I am not in favour of total free speech, and I'd like intentionally hurting people in words to be a criminal offence.)

As far as your last question is concerned, I think that the marriage contract is binding, just as is a business contract, and there are often financial penalties associated with divorce. (E.g. A commits adultery, B divorces A, A then has to pay B alimony.) Adultery doesn't in and of itself carry these penalties because the spouse may choose to forgive and continue the relationship. But I do admit that most business contracts explicitly stipulate the penalties for breach of contract whereas the marital contract doesn't. But they are equally binding in that one can dissolve a business contract if the other party agrees just as one can (at secular law) dissolve a marital contract.

http://en.wikipedia.org/wiki/Adultery says:
In some jurisdictions, including Korea, Taiwan and Mexico, adultery is illegal. In the United States, laws vary from state to state. For example, in Pennsylvania, adultery is technically punishable by 2 years of imprisonment or 18 months of treatment for insanity (for history, see Hamowy) (criminal statute repealed 1972), while in Michigan the Court of Appeals, the state's second-highest court, ruled that a little-known provision of state criminal law means that adultery carries a potential life sentence. In Maryland, adultery is punishable by a fine of $10.

According to http://www.1911encyclopedia.org/Adultery:
In Great Britain it was reckoned a spiritual offence, that is, cognizable by the spiritual courts only. The common law took no further notice of it than to allow the party aggrieved an action of damages. In England, however, the action for "criminal conversation," as it was called, was nominally abolished by the Matrimonial Causes Act 1817; but by the 33rd section of the same act, the husband may claim damages from one who has committed adultery with his wife in a petition for dissolution of the marriage, or for judicial separation. In Ireland the action for criminal conversation is still retained. In Scotland damages may be recovered against an adulterer in an ordinary action of damages in the civil court, and the latter may be found liable for the expenses of an action of divorce if joined with the guilty spouse as a co-defender.

You may also be interested to see that Uganda recently scrapped its anti-adultery law: http://news.bbc.co.uk/1/hi/world/africa/6528869.stm