# Same sex "cheating", not adultery? **URL:** \ **Category:** Great Debates\ **Created:** [November 10, 2003, 9:15pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474 "2003-11-10T21:15:36Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![butler1850](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@butler1850](https://boards.straightdope.com/u/butler1850)\ **Post date:** [November 10, 2003, 9:15pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/1 "2003-11-10T21:15:36Z")
[http://www.seacoastonline.com/news/11082003/news/59646.htm](http://www.seacoastonline.com/news/11082003/news/59646.htm) though I’m from NH, I just don’t get it… seems to me, if my wife is “playing” with someone else in bed, that isn’t me (and I’m not invited/consenting), then it should be adultery. (Clinton/Lewinsky case not withstanding) Thoughts? -Butler ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [November 10, 2003, 9:17pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/2 "2003-11-10T21:17:56Z")
Hell yeah, it’s cheating I’d say! ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [November 10, 2003, 9:32pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/3 "2003-11-10T21:32:00Z")
> [@](#): > > Looking at a dictionary and old case law, the court determined that the definition of adultery requires sexual intercourse. Does that mean it _would_ have been adultery if they had used a strap-on? > [@](#): > > But the majority did not want New Hampshire courts to step onto the slippery slope of defining what sexual behavior might amount to adultery if acts outside intercourse were included. Offhand, I’d say if you touched somebody else’s naughty bits, you’d be hard-pressed to make a case that you didn’t betray your spouse. The _real_ problem is obviously a silly, archaic divorce law in that state. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [November 10, 2003, 9:39pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/4 "2003-11-10T21:39:37Z")
I think the OP is either confusing adultery with infidelity, or wants dictionary definitions changed to suit his moods. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 10, 2003, 10:05pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/5 "2003-11-10T22:05:28Z")
They were having a lot of fun with this case on the radio this morning. Apparently, there is New Hampshire caselaw defining adultery as intercourse “from which spurious issue may arise,” e.g., intercourse which might lead to little bastards in the literal sense. That not only omits lesbianism and oral sex, but also actual intercourse between folks who have had vasectomies, hysterectomies and tubal ligations. Memo to all you guys with the seven-year itch who are shooting blanks: go to New Hampshire. Suffice it to say all of that caselaw is really, really old, stemming from an age when, to put mildly, the full range of human sexuality was not a topic of conversation among polite company. The fuddyduddies on the New Hampshire bench over a century ago probably couldn’t imagine heterosexual sex outside of the missionary position, much less hot girl-on-girl carpet munching action. And sterilization procedures simply weren’t available. It’s unsurprising that they defined the offense as they did, but I think it reasonably plausible that they intended a broader meaning to the term. ---
**Author:** ![sleeping](https://avatars.discourse-cdn.com/v4/letter/s/839c29/32.png) [@sleeping](https://boards.straightdope.com/u/sleeping)\ **Post date:** [November 10, 2003, 10:06pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/6 "2003-11-10T22:06:07Z")
> [@](#): > > Three of the five judges agreed, but two - generally considered the more conservative judges - did not. > [@](#): > > Marcus Hurn, a professor at Franklin Pierce Law Center, was surprised that conservative judges David Brock, the chief justice, and John Broderick wrote the dissenting opinion. While there’s nothing legally improper about the majority opinion, Hurn disagreed with it. Well, they did follow the 1878 law as it defined adultery as “intercourse from which spurious issue may arise.” However, I too was surprised that the _conservative_ judges went against the older law and the _liberal_ judges agreed with it. That seems contrary to the nature of their respective affiliations. I wonder why. Following this definition, oral sex would not be considered adultery. The dictionary defines [sexual intercourse](http://dictionary.reference.com/search?q=sexual%20intercourse) as: 1. Coitus between humans. 2. Sexual union between humans involving genital contact other than vaginal penetration by the penis. So why didn’t the liberal judges attempt to update the definition? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 10, 2003, 10:15pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/7 "2003-11-10T22:15:33Z")
It’s only cheating when your wife won’t share the video with you afterwards. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 10, 2003, 10:32pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/8 "2003-11-10T22:32:21Z")
Anyone have a link to the opinion? I’d be curious to know why they would have needed to define “adultery” at all. I would have thought no-fault divorce laws would make that unnecessary. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 10, 2003, 10:44pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/9 "2003-11-10T22:44:35Z")
Never mind. [The opinion](http://www.courts.state.nh.us/supreme/opinions/2003/blanc150.htm). ---
**Author:** ![sleeping](https://avatars.discourse-cdn.com/v4/letter/s/839c29/32.png) [@sleeping](https://boards.straightdope.com/u/sleeping)\ **Post date:** [November 11, 2003, 1:00am UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/10 "2003-11-11T01:00:35Z")
> [@](#): > > \*Originally posted by minty green \* > Never mind. [The opinion](http://www.courts.state.nh.us/supreme/opinions/2003/blanc150.htm). From **minty green** ’s link: “Unlike no-fault divorces, a fault-based divorce presumes that there is an innocent and a guilty spouse, and permits divorce “in favor of the innocent party” for any of nine possible causes, including _ **impotency** _, adultery, extreme cruelty, felony conviction for which a party has been imprisoned, habitual drunkenness, and abandonment. RSA 458:7, I-IV, VII, IX. Under our fault-based law, the innocent spouse is entitled to a divorce because the guilty spouse has breached a marital covenant, such as the covenant to be sexually faithful.” So impotency is someone’s fault? ---
**Author:** ![sleeping](https://avatars.discourse-cdn.com/v4/letter/s/839c29/32.png) [@sleeping](https://boards.straightdope.com/u/sleeping)\ **Post date:** [November 11, 2003, 1:07am UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/11 "2003-11-11T01:07:15Z")
> [@](#): > > \*Originally posted by minty green \* > Never mind. [The opinion](http://www.courts.state.nh.us/supreme/opinions/2003/blanc150.htm). From **minty green** ’s link: “Unlike no-fault divorces, a fault-based divorce presumes that there is an innocent and a guilty spouse, and permits divorce “in favor of the innocent party” for any of nine possible causes, including _ **impotency** _, adultery, extreme cruelty, felony conviction for which a party has been imprisoned, habitual drunkenness, and abandonment. RSA 458:7, I-IV, VII, IX. Under our fault-based law, the innocent spouse is entitled to a divorce because the guilty spouse has breached a marital covenant, such as the covenant to be sexually faithful.” So impotency is someone’s fault? ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [November 11, 2003, 2:13am UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/12 "2003-11-11T02:13:26Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > Apparently, there is New Hampshire caselaw defining adultery as intercourse “from which spurious issue may arise,” e.g., intercourse which might lead to little bastards in the literal sense. That not only omits lesbianism and oral sex, but also actual intercourse between folks who have had vasectomies, hysterectomies and tubal ligations. Is this what you surmise, or does the caselaw say this? What about condoms, birth control pills, _coitus interuptus_, etc.? Do those make it not adultery as well? ---
**Author:** ![Tallayan](https://avatars.discourse-cdn.com/v4/letter/t/8e7dd6/32.png) [@Tallayan](https://boards.straightdope.com/u/Tallayan)\ **Post date:** [November 11, 2003, 2:38am UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/13 "2003-11-11T02:38:16Z")
Even with condoms etc. there is still a chance of a “Spurious issue” so, according to the law, yes it would be adultery. Though I feel your wife having an affair with another women is a pretty spurious issue in itself. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [November 11, 2003, 2:22pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/14 "2003-11-11T14:22:08Z")
Bottom line: 1800’s social laws don’t work well in the 21st century. But, until amended by the the relevant legislature, they continue to govern the courts. ---
**Author:** ![Mehitabel](https://avatars.discourse-cdn.com/v4/letter/m/8797f3/32.png) [@Mehitabel](https://boards.straightdope.com/u/Mehitabel)\ **Post date:** [November 11, 2003, 2:30pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/15 "2003-11-11T14:30:55Z")
Yes, the laws are obsolete, but it seems to me that originally gay sex (although probably only male) would have been covered under seperate, anti-sodomy laws. So if hubby was cavorting with another man, that might have constituted the ‘felony’ that would also allow a divorce. And sorry, yep, it’s cheating. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 11, 2003, 6:52pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/16 "2003-11-11T18:52:02Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*Is this what you surmise, or does the caselaw say this? \*\* I quoted the relevant language. Taken literally, it would apply to actual intercourse where either or both partners are sterile. \*\* > [@](#): > > What about condoms, birth control pills, _coitus interuptus_, etc.? Do those make it not adultery as well? \*\* As **Tallayan** ably points out, none of the above birth control measures are 100% effective. “Spurious issue,” in those cases, remains a real (though highly unlikely) possibility. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [November 11, 2003, 7:22pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/17 "2003-11-11T19:22:20Z")
> [@](#): > > \*Originally posted by Mehitabel \* > \*\*Yes, the laws are obsolete, but it seems to me that originally gay sex (although probably only male) would have been covered under seperate, anti-sodomy laws. So if hubby was cavorting with another man, that might have constituted the ‘felony’ that would also allow a divorce. > > And sorry, yep, it’s cheating. \*\* Yeah, but remember, sodomy laws are now unconstitutional. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [November 11, 2003, 10:11pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/18 "2003-11-11T22:11:24Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > As **Tallayan** ably points out, none of the above birth control measures are 100% effective. And sterilization is? I’m trying to figure out where the line of probability is. If there’s a 1% chance of spurious issue, is that adultery? What about .1%? .001%? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 11, 2003, 10:41pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/19 "2003-11-11T22:41:47Z")
> [@](#): > > \*Originally posted by The Ryan \* > **And sterilization is?** It certainly is for a hysterectomy. It’s pretty tough to have a kid without a uterus. \*\* > [@](#): > > I’m trying to figure out where the line of probability is. If there’s a 1% chance of spurious issue, is that adultery? What about .1%? .001%? \*\* Obviously, such a question would be one of first impression for the court. But the divide between surgical sterilization and birth control is pretty logical. Botched sterilizations are vanishingly rare, and usually the result of incompetence on the part of a third party (i.e., the surgeon). OTOH, I know a couple of folks who have had condoms break on them, one with pregancy resulting, and user error is hardly unknown for other forms of birth control. ---
**Author:** ![butler1850](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@butler1850](https://boards.straightdope.com/u/butler1850)\ **Post date:** [November 12, 2003, 3:38pm UTC](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474/20 "2003-11-12T15:38:30Z")
Sorry about being away from the OP for so long, but I’m glad I was, as now I have a better sense of what I want to say next. Perhaps I was confusing adultery with infidelity, but to me they are almost one in the same anyway. If, in a marital relationship, I have been the nonparticipant of either of those, I want out of the marriage. No second chance, no plea bargan. I also would feel that the other party (read spouse) had broken the contract of marriage, and I would be entitled to an inequitable division of the marital assets. However, under this ruling, in NH (which is not a no-fault state), I would not be entitled to said inequitable division, and in my opinion would be damaged by the judgement. Obviously the potential for “spurious issue” becomes yet another problem, in the case of a more traditionally defined adultery/infidelity situation, but for the purpose of this thread, I don’t think it should be the defining factor. I also accept that this may be the “legal” interpretation of the laws, but there should be an air of common sense in this issue. Personally I agree with the original article (posted above), and the quote from the dissenting opinion to the case : “(A) relationship is adulterous because it occurs outside of marriage and involves intimate sexual activity, not because it involves only one particular sex act,” Brock and Broderick wrote." , rather than taking a dictionary definition… especially if there are multiple versions of dictionaries, and possibly mutliple interpretations of that definition. -Butler (not a lawyer, but married to a busy divorce paralegal, so I hear this stuff all night long…) [Next page](https://boards.straightdope.com/t/same-sex-cheating-not-adultery/212474.md?page=2)