Should cheating be prosecutable?

Great Debates
1

Hypothetical situation: a couple in a committed, monogamous relationship. One of the partners has sex with a third person without the knowledge or consent of the other person. Doing so opens up the possibility of picking up and transmitting a myriad of communicable diseases - some curable, some not, one of them fatal - to the innocent partner.

Should the person being cheated on be able to charge their partner with criminal charges?

Reckless endangerment? Assault? Attempted murder?

I’m torn. My situation was not so hypothetical, and it took about $2000 (I didn’t have health insurance at the time) to clear up the resulting STDs. Given the choice, I think I would have prosecuted the bastard.

However, I also don’t like the idea of the government intruding that much further into our private lives. “All’s fair in love and war,” which is to say that when you involve yourself with someone you understand the risk that you’re taking. Personal relationships are complex, tangled things that don’t take well to legislation.

What do you guys think?

2

Oh, that kind of “cheating”.

For one, this is already a criminal offense in some states – Virginia, for example, has laws against adultery. For another, I’ll bet you dollars to donut-holes that the civil courts, as they stand today, would allow the “cheated-on” party to sue the cheater for damages, if the cheater gives the cheated-on any sexually-transmitted diseases. Heck, you might even be able to sue the cheater for “pain and suffering”.

3

There has been at least one high-profile case in which a person was prosecuted for knowingly transmitting HIV to a partner, but I can’t see any basis for the situation you described being the basis for criminal action. Most STD’s are transmitted by people who don’t know that they have them. STD’s are a fact of sexual life, and safe sex is the only real weapon against them (aside from abstinence, obviously). If a person decides to trust their partner and engage in unprotected sex, then they assume the risk of contracting a disease. I don’t think that legal action is any more justified than it would be in the case of a broken heart (the old “alienation of affection” lawsuit). Plus, given the number of people who cheat while in monogamous relationships, the situation you describe would open huge numbers of people to prosecution. I’m not at all excusing anyone for engaging in stupid, hurtful, dishonest, or reckless behaviour. My only point is that I think there is no basis for criminilizing sexual behaviour that lacks the intent to do harm.

4

Aschrott, my argument for possible criminal charges is that, while there is no 100% guarantee against getting an STD in a relationship with any sexual behavior, there are precautions that can (and should) be taken that go a long ways towards making a possibility very, very slim.

Let’s say that both partners have themselves tested at the beginning of the relationship, and neither of them have any detectable STDs. They two agree to be completely monogamous - no sex, protected or otherwise, with another person. That, in and of itself, brings the likelihood of unintentional infection down. Herpes and HPV (warts) are still a possibility since they usually aren’t detected until they show symptoms, but that ca be allowed for.

If one of the partners then has sex with another person - protected or unprotected - they are putting their original partner in danger without consent. Doesn’t that strike you as at least criminally negligent?

I suppose it’s possible for the cheater to demand the same testing of their new partner, but of all the instances of cheating I’ve encountered, it’s never happened.

A civil suit is one thing - though to be honest, I don’t think I’ve heard of any. Criminal charges are a completely different matter, as they can involve fines and jail time.

5

Case where there was a token award (civil)
http://www.fayettevillenc.com/foto/news/content/1998/tx98feb/n19adult.htm

One million dollar award for ex-wife (civil)
http://www.detnews.com/1997/nation/9708/07/08070116.htm

Top article describing adultery being a crime in the military and rules for prosecution http://www.seattletimes.com/news/nation-world/index_072998.html
Side note - guys - I hope I’m not p***ing anyone off by providing links…I just find some wierd stuff out here sometimes, and if it applies…well I share. Sorry if it’s against protocol - let me know and I’ll quit.

6

In 1998, the Supreme Court of Canada held that if you have HIV, and know the risks of infecting others, and choose to have have unprotected sex without advising your partner of your HIV status, you can be charged with aggravated assault under our [iCriminal Code*: R. v. Cuerrier

and the stars o’erhead were dancing heel to toe

7

phouka-

How do you determine that two people were in a committed, monogamous relationship. He said/she said? Should people start writing out contracts? Would it only apply to married couples? Even if they were married, what do you do when he (most likely he) says, “but, we had an open relationship–we talked about it”. Do you go back to enforcing the criminality of adultery?

I agree with you (assuming you meant this) that cheating while in a monogamous relationship represents a betrayal of trust and puts the other partner at unnecessary risk of disease, and that those things are unacceptable (to me, anyway). I just don’t see any real way that you could criminalize it without a debacle.

Think about the possible extensions of your position. Two people are in a committed, manogamous relationship as you described above. One partner has a romantic liason with another person which does not involve sex, but does involve, say, kissing. While he/she does not contract an STD, he does contract a virus of another sort (say, a bad flu) that he then passes on to his partner. She freakishly dies from it. Was he negligent?

That, of course, is an extreme distortion of your point. I guess what I’m getting at is that you are attempting to criminalize risk-taking. How could the injured party prove, for instance, that they were not the ones to cheat and contract the disease themselves, and aren’t trying to pass the blame off onto their partner? Disease is predatory. Some inevitably fall into its path while others do not. I’m not sure that you could criminilize the act of putting yourself at risk (or, by extension, your partner) unless–like I said before–it was done with forethought and intent.

8

Well, see, that’s the trouble, and that’s why I’m torn on it. I posted this originally because of the “bitch” thread that got locked instead of moved to GD. Only now I find that I have an emotional gut reaction of my own, as opposed to a detachted intellectual analysis.

It would be practically impossible to say “okay, you can prosecute, but only if it’s an STD.” I mean, couldn’t you transmit about anything during sex - including your hypothetical nasty flu.

And how would you show proof of a committed, monogamous relationship? A signed document? Friends’ testimony?

Does anyone here think it should be illegal?

9

Phouka asked:

My simple answer: No.

If somebody is knowingly spreading HIV, that’s a different issue, and has nothing to do, per se, with the “cheating” issue. Cheating in and of itself is between those involved. We certainly don’t need more government intervention in the bedroom. They try that too much as it is.

10

The law regarding a civil suit would be clear: it would be a form of negligence. Duty, breach, damages, proximate cause (if you believe in that particular animal still), remedy. Go ahead, knock yourself out analyzing it. :slight_smile:

11

You don’t wanna mention alienation of affection as a cause of action against the third party, DS? :smiley:

12

I’ve thought some more about this issue since reading the latest posts to the “Be careful of this woman” thread.

The lethal STD problem is relatively new. To borrow the philosophial musings of Eddie Murphy, STDs used to be of little consequence. Embarrassing as hell, sure - but let’s face it - you got gonerrhea, to got a shot of antibiotic, and cleared it right up. Then along came herpes - you “keep that shit forever, like luggage.” Suddenly cheating meant you might bring home a disease that your spouse would have to live with the rest of his life.

But at least there would be a “rest of the life” to live with.

With the lethality of AIDS, of course, the consequences are even greater. Although, from what I read, we can do a fairly good job of controlling the virus and preserving life, it’s at the cost of a hideously complex and expensive drug cocktail.

I know that we don’t want the government in the bedroom, as a general rule. But at what point does cheatinng becomes reckless endangerment? At what point is sleeping around an act done with depraved indifference to human life?

On the other hand…

If, in a dating or marital relationship, one partner said, in advance, “Look - this is just the way I am. You want to be with me, you must accept the fact that I may sleep with other people. You don’t like it? Leave.”

Under those circumstances, I don’t think any reckless endangerment holds water. If the other partner stays int he relationship, they are accepting the risk. They have no room to complain.

But people have been cheating on spouses since there was such a thing as marriage. God devoted 1/10 of His explicit guidance to us to forbidding the practice.

Here, then, is my question: is the human animal built in such a way that cheating is always a strong possibility? In other words, does every wife, every husband, already assume the risk, simply by marrying a foible human being?

My answer is no. I do not waive my right to recover if someone defaults on a contract with me, merely because people have defaulted on contracts since the beginning of time. I expect to be able to hold someone accountable, to call on the powers of the law to force them to recompense me if they default on an agreement.

So - why can I not call on society to force someone to recompense me if they damage me by putting my health at risk by screwing around?

I am still developing this in my mind, and I’m not prepared to defend it tooth and nail… but I would like to hear a rebuttal.

  • Rick
13

Phouka, are you kidding? Stand up in public and announce that my partner cheated on me? Not only that, but file charges for cheating? I can hear the snide comments now.

And do you have any idea how long it would take? :eek: The legal system as it is takes months, even years, to filter something through and spit (or “excrete” :slight_smile: ) it out the other end. Would you want to drag it on like that? I sure wouldn’t. Get the two-timin’ offspring of a pus-encrusted she-camel and her syphilitic driver out of my life, is what I’d say, and get on with my own.

All I can say is, you’d have to be really, really angry to be able to follow through on something like that.

Note to Missy–are YOU kidding? We LOVE having people provide links, it saves us from having to go look it up ourselves! :smiley:

14

Well, if you limit the scope of the discussion to married couples I can see a basis for “defaulting on a contract” argument. But something about the very notion of this perturbs me–even though I can’t articulate why.

My understanding is that, in order to have “recklessly endangered” another person, you have to have done so knowingly.

Suppose that a man cheats on his wife by going to a brothel in Nevada, which–under the laws of the state of Nevada–screens it’s employees for venereal disease and requires the use of condoms. Suppose, against all odds, that he contracts a disease during this encounter and then passes it on to his spouse. Did he knowlingly endanger her? It seems to me that he took all reasonable precautions to avoid the risk of disease.

However, he violated his “contract” with his wife, both morally and legally–and caused her inintended harm in the process.

If we, as a society, choose to prosecute him for that, we have no choice to do it solely on moral grounds: adultery is wrong.

My problem is that, disease or no disease, (and, again assuming that the transmission is without the offender’s knowledge) the issue always comes back to the basic act of infidelity. Absolutely any sexual act puts a person at potential risk of disease. Therefore any act of adultery puts a person at risk. Therefore we would have to enforce penalties against all those who engage in the practice–the same way we enforce laws against drunk drivers.

A drunk driver cannot defend himself by saying “but I didn’t hurt anyone”. Whether he causes a crash or not, we acknowledge that he has put us all at risk and we prosecute him. We would have to do the same with cheaters. Could we actually only prosecute against those that pass on disease. Then, only against those that do so and then choose not to remain with their spouse (because who would want their spouse sent off to jail if they are going to stay together)? I just see so many problems here.

However, if someone cheats on me and gives me a “gift that keeps on giving”, I’m going to be mighty pissed.