To the Air Force, a 26-year-old bomber pilot who fell hard for a four-star bad boyfriend deserves to be court-martialed for a handful of military crimes including adultery, the quintessentially biblical sin.
To most Americans, she does not. They have been reacting with amazement, not least because for decades, civilian courts have responded to adultery with a big yawn.
It’s not that adultery laws don’t exist. It’s that they’re not enforced. Although 75 percent of Americans believe adultery is always wrong, the lack of enforcement reflects ambivalence over whether the government should be peeping into bedrooms.
In half the states, adultery is still a crime. In some, including Oklahoma, Idaho, Michigan, Wisconsin and Massachusetts, it’s even a felony. Professor Katharine B. Silbaugh of Boston University law school, a co-author with Richard A. Posner, a federal judge, of “A Guide to America’s Sex Laws,” said state laws vary according to which lover should be prosecuted: “The married one will always be guilty,” she said, “but the question is whether the unmarried one is also guilty.”
According to her guidebook, in Arizona, for example, both parties are guilty of a misdemeanor, as long as one is married. By contrast, the District of Columbia holds that when the act is between a married woman and an unmarried man, both parties are guilty, but that when the lovers include a married man and unmarried woman, only the man is guilty.
In Minnesota, adultery is an act between a married woman and a man other than her husband. Sex between a married man and an unmarried woman is not prohibited.
Prosecutions, though rare, are not unheard of.
The Air Force is more vigilant - the service brought 67 prosecutions last year - but surely those numbers don’t reflect the incidence of adultery. Against that backdrop, the court-martial faced by First Lt. Kelly Flinn, a single woman, struck many as unfair. If she had been a civilian, she wouldn’t have been charged; she would have been comforted.
Adultery is considered even less odious in divorce court than in criminal court. All states have no-fault divorce, which means that a party no longer has to allege a specific fault, like adultery, as grounds.
In fact many heartsick spouses who fantasize a judge will wreak vengeance on the philanderer are shocked to learn that when it comes to divorce court, the only cheating a judge cares about is on income reporting.
In truth, the Sixth Commandment just doesn’t pack the same oomph anymore. The term “adultery” has grown dusty from lack of use. Instead, today’s language dilutes condemnation with a drop of wistfulness. Philanderer, rather than adulterer. A faithless spouse has wanderin’ eyes, a cheatin’ heart. Even more watered down - has an extramarital affair.
Indeed a smattering of states have no adultery statutes, criminal or matrimonial. Not Hawaii, a honeymoon mecca. Not California, certainly. And not Nevada, which has quickie divorces, quicker marriages and ubiquitous brothels: anti-adultery laws would be just plain bad for business.