Marriage, Sexual Fidelity, and Non-Monogamy in Family Law

Marriage and Sexual Fidelity Marriage and Sexual Fidelity talk for International Society Family Law talk for International Society Family Law EDWARD STEIN EDWARD STEIN PROFESSOR OF LAW &DIRECTOR, GERTRUD MAINZER PROFESSOR OF LAW &DIRECTOR, GERTRUD MAINZER PROGRAM IN FAMILY LAW, POLICY & BIOETHICS PROGRAM IN FAMILY LAW, POLICY & BIOETHICS CARDOZO SCHOOL OF LAW CARDOZO SCHOOL OF LAW ed.stein@yu.edu ed.stein@yu.edu

Outline 1. Definitions and Data 2. Virtues of Consensual Non- Monogamy 3. Family Law Framework in the US for Sexual Fidelity in Marriage 4. Proposal for Reform

Terminology Extra-Dyadic sex having sex with person other than one s spouse or primary partner Infidelity having extra-dyadic sex when one s spouse/partner has not consented to extra- dyadic sex Consensual Non-Monogamy having extra- dyadic sex when one s spouse has consented to such extra-dyadic sex (includes m nage trois and other forms of group sex)

Types of Consensual Non-Monogamy Monogamish - being mostly monogamous, that is, being in a dyadic relationship but being open to extra-dyadic sex every now and then Swinging being in a dyadic relationship but engaging in extra-dyadic sex in social settings (e.g., swinging parties or conventions or cruises) in which both partners are present and when the extra-dyadic sex is with people who are friends or acquaintances, but not romantic partners Polyamory being open to and desirous of sexual/romantic/loving involvement with more than one person at a time Don t Ask, Don t Tell - being in a dyadic relationship but being open to extra-dyadic sex but not discussing such extra-dyadic activities with one s spouse/partner What Happens in Vegas, Stays in Vegas - being in a dyadic relationship but with an understanding that extra-dyadic sex is permitted in certain limited geographical contexts or other specified circumstances (e.g., when on vacation, a business trip, or when one s spouse/partner is away from home)

Rate of Extramarital Sex Among Married Man-Woman Couples Source Rate of Extramarital Sex Among Married Man-Woman Couples Husbands Wives Kinsey (1948/1953) 33% 25% Siegel (1991) (citing Atwater (1982) & Pittman (1989)) Laumann (1994) 50% 40% 25% 15% Weis (1997) 35% 20% Wiederman (1997) 23% 12% Mark et al. (2011) YouGov.com (2014)* 23% 21% 19% 19%

Frequency of Consensual Non-Monogamous Relationships Study Subjects Question asked Couple type 2 Men 2 Women 1 Man- 1 Woman 23%(men) 20% (women) 22 % (blended) 4147 people in relationships from across USA (quasi-random) Blumstein & Schwartz (1975) Have you discussed [with your partner/spouse] sex outside the relationship and decided it was sometimes all right? 67 % 33% 782 people in relationships from across USA (quasi-random) Solomon et al. (2005) / Gottaet al. (2011) Have you discussed with your partner/spouse sex outside the relationship and decided it was sometimes all right? 44% 5% 6 % (men) 3 % (women) 4 % (blended) Do you not have a commitment to sexually exclusive monogamy as an organizing principle of your relationship ? 70 men in same-sex relationships in Ontario Adam (2006) 74% N/A N/A Are you in a consensual non- monogamous relationship? 39 same-sex couples in San Francisco Hoff & Beougher (2010) 64% N/A N/A Have you negotiated an agreement about sex in your relationship? 23,424 Australian men in relationships with other men 1093 individuals (not all in relationships) Prestage et al (2008) 75% N/A N/A If you are in a romantic relationship, are you in a consensual non-monogamous relationship (dating one or more people and your romantic partner(s) know about it; e.g., open relationship, polyamorous relationship)? Are you in a consensual non- monogamous relationship? Conley et al. (2012, 2013) N/A N/A 4.3% 120 cohabitating couples in Salt Lake City Diamond (unpublished) 25 % 7 % 3%

Outline Definitions and Data 2. Virtues of Consensual Non- Monogamy 3. Family Law Framework in the US for Sexual Fidelity in Marriage 4. Proposal for Reform

(Possible) Virtues of Consensual Non-Monogamy reduces sexually transmitted diseases and leads to safer sex practices by people in relationships may lead to greater sexual satisfaction (that is, compared to those in monogamous relationships or in relationships in which infidelity occurs) reduces jealousy in relationships facilitates honesty in relationships fits better with human nature insulates relationships from break up due to infidelity

Conley, et al. , Unfaithful Individuals Are Less Likely to Practice Safer Sex Than Openly NonmonogamousIndividuals [S]exually unfaithful individuals [i.e., those engaging in infidelity/non-consensual non-monogamy] engage in more risky sexual behaviors than individuals who have open agreements to engage in sexual nonmonogamy... [Specifically,] [s]exually unfaithful individuals reported [1] using condoms for anal and vaginal intercourse less than individuals [in consensual non-monogamous relationships;] [2] were less likely to inform their primary partner of sexual encounter[s] [with others; and] [3] [were] more likely to be under the influence of alcohol or other drugs during [such] sexual encounter[s]. 9 JOURNAL OF SEXUAL MEDICINE 1559 (2012)

Conley, et al., Re-examining the Effectiveness of Monogamy as an STI-preventive Strategy [M]onogamy directives may[,] by pressuring people to maintain an identity as monogamous, counterproductively increase risky sexual choices. That is, stigma against non-monogamy may lead individuals to conceal extradyadic sexual intercourse from an established partner, who could then be exposed to [sexually transmitted infections and diseases]. 78 PREVENTIVE MEDICINE 23 (2015)

Conley, et al., Re-examining the Effectiveness of Monogamy as an STI-preventive Strategy, The basic perceptual process of habituation means that sexual partners become less sexually attractive over time. Even in cultures and circumstances in which consequences of infidelity are dire (e.g. cultures in with the death penalty is enforced for extramarital sexual encounters), non- monogamy still occurs. 78 PREVENTIVE MEDICINE 23 (2015)

Outline Definitions and Data Virtues of Consensual Non- Monogamy Family Law Framework in the US for Sexual Fidelity in Marriage Proposals for Reform 3. 4.

Adultery Laws: Direct, Indirect and Extra-Legal Effects Direct effects of the law of adultery: Adultery as a crime Adultery as a ground for divorce Adultery as a reason to deny custody or refuse adoption Indirect effects of the law of adultery (that is, legal effects related to adultery s status as crime or as a fault ground for divorce): Extra-legal effects of the law of adultery:

Twenty Twenty- -Two States Where Adultery Is Illegal Two States Where Adultery Is Illegal (and what kind of crime it is) (and what kind of crime it is) Alabama (class B misdemeanor) Mississippi (misdemeanor) Arizona (class 3 misdemeanor) New Hampshire (class B misdemeanor) Florida (second-degree misdemeanor New York (class B misdemeanor) Georgia (misdemeanor) North Carolina (class 2 misdemeanor) Idaho (felony) North Dakota (class A misdemeanor) Illinois (class A misdemeanor) Oklahoma (felony) Kansas (class C misdemeanor) Rhode Island (petty misdemeanor) Maryland (misdemeanor) South Carolina (misdemeanor) Massachusetts (felony) Utah (class B misdemeanor) Michigan (felony) Virginia (class 4 misdemeanor) Minnesota (felony) Wisconsin (class I felony)

Three Approaches to Divorce in the US Fault-based divorce- (optional in 3 states [AR, AZ, LA] where there is a choice of a covenant marriage)- divorce will only be granted if a spouse proves that the other spouse has satisfied one of the statutorily enumerated grounds for divorce; typical grounds include cruelty, continuous separation for a specified amount of time, or adultery Pure no-fault divorce- (18 states) divorce will be granted if a spouse claims or establishes that the marriage is irretrievably broken or that the spouses have irreconcilable differences Hybrid approach to divorce- (32 states) divorce will be granted if spouse either (i) claims/establishes the marriage is irretrievably broken/that the spouses have irreconcilable differences or (ii) proves that the other spouse has satisfied one of the statutorily enumerated grounds for divorce

States Where Adultery Is a Ground for Divorce* Alabama Alaska Arkansas Connecticut Delaware Georgia Idaho Illinois Kansas** Louisiana Maine Maryland Massachusetts Mississippi New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia West Virginia * Jurisdictions that have adultery as a fault ground only in virtue of having covenant marriage laws are not included ** Kansas law does not explicitly list adultery as a ground for divorce, but adultery has been included as a ground in case law interpreting a statutory ground for divorce, namely, failure to perform a material martial duty or obligation.

Some Other Laws That Punish Adultery S.C. CODE. ANN. 20-3-130: prohibits award of alimony to a spouse who has committed adultery prior to either reaching a settlement agreement or the entry of an order dealing with spousal support and property distribution issues. N.C. GEN. STAT. ANN. 50-16.3A: prohibits award of alimony [i]f the court finds that the dependent spouse participated in an act of illicit sexual behavior [defined to include acts of sexual intercourse voluntarily engaged in by a spouse with someone other than the other spouse, 50-16.1A(3)(a)] during the marriage and prior to or on the date of separation. N.J. STAT. ANN. 3A:37-2: denies typical spousal inheritance rights to a spouse who committed adultery 750 ILL. COMP. STAT. 50/1(D)(j): says that having committed adultery is a ground for finding a person unfit to be a parent.

Adultery Laws: Direct, Indirect and Extra-Legal Effects Direct effects of the law of adultery: Adultery as a crime Adultery as a ground for divorce Adultery as a reason to deny alimony, inheritance, custody or adoption Indirect effects of the law of adultery (that is, legal effects related to adultery s status as crime or as a fault ground for divorce): Losing one s job due to adultery (even if not charged or convicted) Being denied housing due to adultery (even if not charged or convicted) Effect on distribution of property (even if adultery is not the ground for divorce) Contracts between spouses consenting to non-monogamy may not be enforced because they are against public policy Extra-Legal effects of the law of adultery: Adultery is kept in closet (even from one s spouse), stigmatized, etc.

The Law Should Not Discourage The Law Should Not Discourage Consensual Non Consensual Non- -Monogamy Family law, criminal law, etc. should not disincentivize consensual non-monogamy, because: (i) consensual non-monogamy is desirable for some people; (ii) some people in relationships can t -- or won t -- be monogamous (even when consensual non-monogamy is disincentivized); (iii) because disincentivizing consensual non- monogamy incentivizes infidelity. Monogamy

Conclusion and Proposals for Reform 1. Repeal criminal laws against adultery 2. Repeal other laws that punish adultery 3. Embrace pure no-fault divorce (like California) rather than hybrid approach to divorce OR, failing that, eliminate adultery as a ground for divorce 4. Allow couples to waive adultery as a ground for divorce by enforcing pre- and post-nuptial agreements that do so 5. Stop discouraging non-monogamy, at least for couples who want it.