April 19, 2006

Still More Conservative Ignorance Willful Disregard of History

by PG

One of the peculiarities of modern political discourse that's come more sharply to my attention lately is that conservatives, who in the Edmund Burke tradition are supposed to be hyper-aware of the past, actually seem to be ignoring it and behaving as though the world was created in about 1975 (not long after "sexual intercourse began") with liberalism as the status quo. Measures that attempt -- imperfectly and often even wrongly -- to correct for pre-1975 problems are treated by conservatives as dinosaurs existing for no good reason. Welfare, affirmative action, environmentalism, etc. may be misguided or excessive, but they did not appear out of thin air (more out of thick air in the case of environmentalism). I have commented on this lack of interest in history in the abortion debate, and it appears again in Steve Dillard's paean to an adultery tort.

Unlike the Southern Appeal commenters who are horrified by state interference in such intimate matters, but whose concerns are assuaged by its being a private civil action, I see no problem, even post-Lawrence, with government prohibitions on adultery. If two people decide that they want the benefits of a state-recognized marriage, they must also assume the burdens, and in some states marriage is defined partly by sexual fidelity. In contrast to recent gender discriminatory additions to marriage statutes, a legal demand that people who receive the privileges of marital recognition jump through certain hoops -- in Texas, one must attend a premarital education course, not be delinquent in child support and have a blood test -- does not unconstitutionally restrict the ability to receive this privilege.

The problem with Dilllard's support for an adultery tort, as well as calls to kill no-fault divorce, is the forgetfulness of why we don't have such torts and do have such divorces.

The SA commenters worry about the bonanza that a new tort might present for attorneys, but the former beneficiaries of adultery-obsessed legal regimes were actually private investigators, the men who hid in bushes and invested in long range lenses so they could catch a cheating spouse in the act. This gave the PI's client a ground to get out of the marriage (even if said client had been the first to commit infidelity) and made the adulterer on film the officially blamed party. If neither spouse was sexually unfaithful, other reasons to end the marriage had to be found or manufactured, so that a daily beer after work became "habitual drunkenness." Naturally, such fault-finding did little to make the marriage's breakup amicable or ease the unfortunate children's transition into a post-divorce existence.

So states began to grant divorces for spouses who wanted to maintain civility by not deeming one person to be at fault for the marriage's failure. Take the example of the divorce in The Squid and the Whale, based on Noah Baumbach's own childhood: If the husband has fallen into a pattern of emotionally abusing his wife through disregard and humiliation, and the wife subsequently has committed adultery, is the divorce the fault of the first offender, the husband? or of the wife for being an adulteress (because of course sexual infidelity is a much greater crime against marriage than any other)? Or can we be realistic enough to admit that many marriages end from a combination of both spouses' malfeasance?

One commenter's idea that the tort will be a useful weapon for one spouse to hold against another, or to prevent wicked seducers from using their wiles, evidences such an impoverished concept of marriage that I only hope it doesn't come from personal experience. I think a good marriage is precious, but I don't see how making divorce as ugly and inhumane as possible will strengthen such marriages. Premarital education, waiting periods, age requirements and other barriers to unwise marriages are much more likely to restore health to the institution than barriers to wise divorces. If your husband is so determined to cheat that only the threat of a tort against him or his partner in adultery can stop it, either resign yourself to an unfaithful husband or end the marriage.

Spouses who do have an axe to grind still can swing it; they can tell their children what a rotter Dad is, have the court find him at fault and extract penance in the form of alimony. But this doesn't apply only to adultery. Consider the news announcement Dillard is cheering:

Husbands and wives who behave badly during a marriage could be financially punished in the divorce courts if a ruling is upheld by the House of Lords in the next few weeks. If the law lords conclude that conduct matters, it will turn divorce law on its head and, experts believe, could create a new wave of "blame culture" in the family courts. There is already a greater use of private detectives.
Bad behavior presumably can include everything that currently counts as a ground for divorce, including physical and mental mistreatment, not just adultery. Moreover, the specific ruling mentioned in the article would be one likely upheld in many American jurisdictions even if the husband had divorced his wife before having sex with anyone else, as "Mrs Miller, who gave up her job a year into the marriage, had 'an expectation' of a high standard of living."

My favorite comment of those who agreed with Dillard had to be the one from Paul, who said, "Marriage is a contractual agreement in which two persons are given exclusive privileges to each otherís sexual company. If you sleep with my wife, you have taken something to which I am entitled, and 'damaged' my enjoyment of a legally recognized privilege." Just when you thought it was safe to stop regarding women as chattel and their sexuality as a husband's entitlement...

April 19, 2006 02:49 PM | TrackBack
Comments

Intriguing post.

Adultery is still a crime is some jurisdictions. How do you feel about that? I find it unjustifiable in the modern era.

As for your reaction to Paul's comment, do you therfore also consider loss of consortium an illegitimate category of civil damages?

Posted by: KipEsquire at April 19, 2006 05:57 PM

It's also possible that my support for an adultery tort and the repeal of NF/ID divorces is based on: (1) the desire to shame, discourage, and penalize those who engage in adultery; and (2) the disasterous impact NF/ID divorce laws have had on our culture since their widespread enactment.

And while I agree that neither an adultery tort or repealing NF/ID divorce laws will completely restore or preserve traditional marriage (which is the foundation of any flourishing society), the bottom line is that both are a step in the right direction (as are waiting periods, premarital counseling, etc.).

Oh, and the "women as chattel" aside was a cheap shot. Paul clearly believes that the converse is true as well. His comment is based on the biblical view of two becomming one flesh; a proposition I suspect you're familiar with.

Posted by: Feddie at April 19, 2006 06:26 PM

Agreed about the cheap shot: not only do the commentors you disagree with clearly indicate that the provision isn't gender discriminatory, but the quote you mention makes no chattel argument to begin with. The argument is unhappily phrased, no doubt. But unless I'm mistaken, for a woman's sexuality to be chattel, a man would have to have the affirmative right to a woman whenever he wished, whether she say no or not. Allowing someone exclusive access to something doesn't make that something a chattel.

But then, your title is a cheap shot as well. Unless I've misread you, you never mention any point at which a conservative is ignorant of history, but rather places at which their interpretation of history--or more properly, the consequences of legislation--differs from your own.

Posted by: A. Rickey at April 19, 2006 07:00 PM

KipEsquire,

I wouldn't lobby to retain (or make) adultery a crime, but a government that recognizes marriage can make certain rules about how people behave within the marriage: that they may have responsibility for one another's debts, that their property becomes held in common, etc. Nothing about the modern era changes this. My understanding of loss of consortium is that it is a tort against someone who has rendered one spouse physically or mentally unable to have sex with the other. The spouse of the injured person presumably wouldn't sue unless the injury is what prevents their marital relations. None of this involves questions of whether the spouse is the only one who would be having sex with the injured person absent the injury.

Feddie,

It was a cheap shot, but he was so opening himself up to it. I'm fine with your first objective of shaming, discouraging and penalizing those who engage in adultery, but I don't see how it does anything for healthy marriages. The husband who falls in love with a specific other, and the other with him, are not going to be discouraged from True Love by a tort. The husband who just wants to shag anything that moves, and whose rotation of partners might be dissuaded by fear of liability, is not worth keeping to begin with.

When you say that NF/ID divorces have been disastrous, do you know of specific couples who had a great marriage and ought to have stayed together but who were misled by the degenerate culture into quickie divorce? None come to mind for me, but I can think of some women whom I definitely would have urged to leave their husbands due to emotional or physical abuse of themselves and/ or their children (admittedly not causes for divorce in Matthew*), but who refused to do so due to the dictates of Southern Baptist or Asian culture. Perhaps sufficient exposure to the me-me-me folks in blue states will turn that equation around. It's entirely acceptable for the state to mandate counseling before granting a divorce -- after all, total strangers in lawsuits go through mediation, so it's not too much to ask of married couples. But to insist on fault-finding and finger-pointing and "your mom cheated on me," "well, your dad used to call me a whore before I ever cheated on him"... no thanks. If the marriage is broken, I'd prefer that the exes not cut each other and innocent bystanders with the sharp edges of what remains.

A. Rickey,

But unless I'm mistaken, for a woman's sexuality to be chattel, a man would have to have the affirmative right to a woman whenever he wished, whether she say no or not. Allowing someone exclusive access to something doesn't make that something a chattel.

I suppose this is another one of my alternative interpretations of history, and weakened by my poor performance in Property Law but "exclusive access" is one aspect of personal property. If just anyone had access to something defined as chattel, there would be no such thing as a trespass to chattel -- which is basically what's being discussed here with an adultery tort. I hereby invoke the cliched analogy of women to cows and their sexuality to milk: even if your cow wanders to someone else and prefers to be milked by him, he's still trespassed on your chattel by taking the milk.

I thought "ignorance" was more polite than "willful disregard." At no point in the post or comments does Dillard acknowledge his idea is hardly original, but instead was the former status quo.

"The 'heart balm' torts involving marriage were all rooted in the notion that a spouse (often only a husband) had a property interest in the other spouse's chastity or affections. Cases were routinely brought alleging these forms of interference with marriage, and juries were inclined to award damages.
It was in the mid-Twentieth Century that States moved to abolish these torts. They were prompted by a concern that they were being used to extort settlements from defendants who could not afford the attendant publicity, and a concern that plaintiffs would fabricate claims to avoid consequences for their own voluntary sexual indiscretions."
- first hit in googling "adultery tort"

To answer the original question posed in his post, however, North Carolina still has a tort of "criminal conversation."

"In 1997, a jury in Forsyth County ruled that a female paramour had to pay 1.2 million dollars in damages to the innocent spouse. In Alamance County, a jury gave a jilted wife one million dollars in damages. A deceived husband in Wake County received $243,000 in damages. In 1999, a Durham Court Judge ordered the wife's lover to pay $40,000 in punitive damages to the deceived husband on his criminal conversation claim."

* Which is not to trash Matthew. At least he provides one instance of someone's contemplating a civilized divorce over presumed adultery, 1:18-19:
"Now the birth of Jesus Christ took place in this way. When his mother Mary had been betrothed to Joseph, before they came together she was found to be with child of the Holy Spirit; and her husband Joseph, being a just man and unwilling to put her to shame, resolved to divorce her quietly."

Pity that the just man's example isn't the one most often cited.

Posted by: PG at April 19, 2006 08:38 PM

You and that cow/milk thing.

Shall we just call your answer "willful disregard" of the point? Yes, "'exclusive access' is one aspect of personal property," but (a) not all property is chattel property, and (b) exclusive access is not a sufficient condition one to possess a chattel.

The important distinction, to use your analogy, is that the cow has no right not only to be milked by other farmhands, but also no right to say no to the farmer himself. Saying that a man thinks a woman should be treated like chattel property is stating that he thinks rape within marriage should be legalized.

Hence, it's a cheap and unworthy shot.

This may be because you fail to make a distinction between property interests, property-like interests and chattel property, but that's hardly an excuse.

Posted by: A. Rickey at April 22, 2006 05:05 PM

"Saying that a man thinks a woman should be treated like chattel property is stating that he thinks rape within marriage should be legalized."

Still with the peculiar view of history. In the context of how marital rape has been treated, the question is not making it legal but making it *illegal.* Because some states hadn't criminalized marital rape by 1993, the federal government did it with the Violence Against Women Act of 1994, which legislation was shredded by the Supreme Court for overstepping federalist boundaries. Thirty states still have exemptions for spouses (in five states, also co-habitors) from prosecution for rape, usually requiring the victim to prove use of force. The General Assembly didn't get rid of Virginia's exception until 2002, bravely standing up to the people who saw this as yet another way for women to make false accusations against their longsuffering husbands in divorce proceedings.

So it's hardly a minority idea that the regular sexual assault laws don't apply to husbands. But I don't know what Paul thinks about the issue, and I already admitted that it was a cheap shot.

Posted by: PG at April 24, 2006 02:06 AM
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