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Tuesday, June 19, 2012

Curbing infidelity




Very early in my legal career, a Filipino woman asked me how she could proceed with a criminal complaint against her husband for having sex with another woman. Here in Canada, the crime of adultery applies to both a man and a woman when either of them has sex with someone outside the marriage. In the Philippines, adultery is when the wife sleeps with another man, and when the husband does it, it’s called concubinage.

My advice to the woman was she could use adultery as a ground for getting a divorce. But she wasn’t interested in divorce. She just wanted her husband brought to justice. I told her she could file a complaint with the police who can initiate the charges against her husband, but cautioned her that while adultery could still be in the books, no one to my recollection had ever been charged with adultery in this day and age.

The Filipino woman insisted that she file a complaint. I accompanied her to the nearest police precinct. The attending police officer was shaking his head in disbelief and had to tell her that they don’t bring charges of adultery anymore, and if they did, they would be swamped with a flood of complaints as adultery, he said, very nonchalantly, was happening left and right today.

Eventually, the woman separated from her husband, and after a year she filed for divorce, not because of adultery by the husband but because of their separation of more than a year.

I am not aware if adulterous Filipino husbands are still charged with adultery or concubinage in the Philippines. But growing up in the country, I had heard many instances when Filipino husbands had been accused by their wives of infidelity and yet had not been hauled to jail for their indiscretion. Quite ironically, I had also heard cases of open marriage where the wives have accepted their philandering husbands and moved on with their marriage, which reminded me of the Republican presidential primary last year when one of Newt Gingrich’s ex-wives alleged that the former House Speaker proposed to her an open marriage as an alternative to monogamy or illicit sex.
Adultery, illustration by psstormsy. Click link to view "Newt Gingrich:
Serial Adultery," http://www.youtube.com/watch?v=nOQbZvK7KcQ
While modern society still looks down on adultery, it has been expunged in many jurisdictions as a serious criminal offence. It has however retained its legal consequences, particularly in divorce cases. Where there is fault-based family law, adultery constitutes a ground for divorce and may be a factor on division of property or may affect the status or custody of children. In some cultures, adultery can result in social ostracism.

Take the case of former New York Governor David Paterson when he admitted during a news conference that he had several extra-marital relationships. At one point, he said, “I didn’t break the law.” Technically, adultery is still a crime in New York, but in reality, it is rarely or never been enforced. Most charges are dismissed or dropped after the defendants plead guilty to other charges. In New York, adultery is a class B misdemeanor and punishable by up to 90 days in jail or a $500 fine.

Raoul Felder, a well-known Manhattan divorce lawyer whose clients included Rudolph Giuliani, recalled that in over four decades of practice, many an enraged client would demand him to refer their spouse’s infidelity for criminal prosecution. In his office that overlooked the Palace Hotel in Midtown Manhattan, Felder usually offered his standard response: “You’re right. It’s a class B misdemeanour. Come over here behind my desk. Look across the street. Right now, the criminals are hard at work.”

A former federal prosecutor, Felder said that criminalizing adultery has no practical significance. “It’s a celebration of hypocrisy, with a nod of the head to religion over reality,” he said. “Adultery is the last symptom of the disease. It’s not the disease,” he added.

Recently in the Philippines, the House Committee on Women and Gender endorsed for discussion House Bill 5734, also known as the Sexual Infidelity Bill, which would impose stiff penalties on married citizens engaging in sexual intercourse outside their marriage. Under the proposed bill, sexual infidelity is defined as “an act committed by any legally married person who shall have sexual intercourse with another person who is not his or her legal spouse.” Adultery can only be persecuted upon the complaint of the offended spouse.

According to the proponents of House Bill 5734, the current Philippine Penal Code has been more lenient to men and more demeaning to women. Women found guilty of infidelity receive longer prison sentences compared to unfaithful Filipino men. Under the proposed bill, adultery committed by both spouses will be treated as the same acts that make up sexual infidelity.

Representative Josephine Veronique Lacson-Noel, one of the bill’s proponents, said that “the bill aims to protect the institution of marriage.” Whether the proposed law would be an effective deterrent to marital infidelity is a big question mark.

The same question can be asked of Newt Gingrich’s notion of an open marriage – if more people considered such openness as an option – would marriage become a stronger institution, less susceptible to cheating and divorce, and more attractive to unmarried cohabitation?

Of course, Gingrich denied that that he had asked his second wife, Marianne Gingrich, for an open marriage. That was during the time when, as House Speaker, Gingrich was carrying a six-year long adulterous relationship with a Congressional Staffer (Callista, whom he eventually married) while overseeing the impeachment of President Bill Clinton for his affair with a White House intern. As it turned out, Marianne’s accusation shows that an honest open relationship is seen as more scandalous and more politically damaging  than a dishonest adulterous relationship. Eventually, Newt lost his bid for the presidency.

But to Dossie Easton and Janet W. Hardy, authors of The Ethical Slut: A Practical Guide to Polyamory, Open Relationships & Other Adventures, open marriages can work, and have worked for thousands of couples over decades if not centuries. They said that “much pain could be avoided if couples discussed monogamy as an option during the dating phase of their relationship, rather than assuming it as a default,” that monogamy is not “much of a choice when you are forbidden to choose anything else.” But the way of The Ethical Slut may just be too much for so many of us, especially if we are not raised around the values, customs and culture that allow such marital arrangement. Imagine if this were the primary purpose of the Sexual Infidelity Bill before the Philippine Congress.

In Spanish, the word for wives, “esposas,” also means handcuffs. Maybe that’s why Filipino men tend to keep a tight rein on their wives. The key, however, to loosening the handcuffs of marriage is open communication between two or more open-hearted people. But not Gingrich’s explanation about his alleged discussion of an “open relationship” with his second wife or his attempt in continuing a long-running extramarital affair that did not prevent to raise the hackles of America about the hypocrisy he wanted them to swallow.

State regulation of marital relationships such as the Philippine Sexual Infidelity Bill which criminalizes adultery will not strengthen the marriage or make it even more durable. The most it could accomplish is to scare men out of their wits, but not enough to deter them from testing the minefield of extramarital affairs. Neither open relationships of the Gingrich variety will make marriage last.

Any configuration of human relationships, whether same sex, open, swinging, asexual or straight, should not really concern us, on personal or policy grounds. Civilization or the betterment of society as a whole will not depend on the sanctity of any particular form of marital arrangement, but rather upon honouring the dignity intrinsic to any mutually respectful and beneficial relationship.

Even with laws that both criminalize adultery and make it a ground for divorce to enforce the societal norm of lifelong fidelity, there will always be perils in maintaining a monogamous relationship, and the promise of other options in alternative marital arrangements is equally as scary.

Contemporary marriage revolves around the ideals of emotional intimacy and interdependence, more than simply an economic arrangement or a parenting relationship. It is a relationship that people hope will satisfy their most intimate emotional and psychological needs, which include sexual exclusivity because it is this physical relationship that animates marriage.

The paradox of marriage is that people would almost certainly be happier if they expected less. Not to sound corny or clich├ęd, the surest road to discord, marital and otherwise, is to expect your partner to complete you, or to make you whole. If only couples could relax or relinquish their emotional hang-ups, marriages could better fend off the havoc of extramarital dalliances, and likely, would also pose no need for them.

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