As adultery of intentional commonly sexual intercourse of a spouse designated as a third party that is not matched by mutual agreement between the spouses. In legal language today, adultery is only used in legal contexts in the sense of a breach of contract , while in social psychology the terms cheating or cheating are common. In many countries adultery is no longer a criminal offense.
Adultery of a wife is severely punished, especially in societies with paternal law . In maternal societies, adultery is usually considered a minor offense because biological paternity is given little social importance. Different, sometimes even mutually exclusive, concepts of adultery can occur in the same society. Despite the sometimes very severe penalties, infidelities occur in all societies studied by anthropologists . A personal attitude towards the facts of adultery (or affair) does not indicate a belief in monogamy (monogamy) and against polygamy (plural marriage).
Adultery in Selected Cultures
In ancient Athens
From ancient Athens , exaggerated humorous descriptions of Aristophanes are widespread, which do not correspond to reality. With reference to this one tells of the radish penalty . Indeed, homeowners could immediately kill any man caught out of wedlock with a woman in their family, or sue for the death penalty. Otherwise, husbands' dealings with unmarried women were socially acceptable; the conventions were only intended to avoid cuckoo children. Adulterous wives were cast out of the family and excluded from religious ceremonies.
The Greek mythology tells of continued adultery with Aphrodite and Ares , had emerged from the more common children. Homer wrote about the discovery of this adultery by the husband Hephaestus and the following Homeric laughter, which is difficult to understand from a later point of view .
In ancient Rome and in the received Roman law of Europe
In Roman law , from 18 BC onwards The lex Iulia de adulteriis , a law passed under Augustus , which in turn regulated and codified older norms of self-help. Through the lex , the establishment of adultery and the punishment of the guilty were withdrawn to a large extent from the judicial rulings of the family concerned and publicly regulated. This law was supplemented in the Roman and later in the Byzantine Empire by decrees from the 2nd to 6th centuries. In this supplemented form it is in the Corpus Iuris Civilis and has exercised an influence on European marriage law up to modern times.
After that, the man had a stronger legal position vis-à-vis the woman. He was obliged to separate from his wife and to file public charges against her and against the lover for adultery within two months. Failure to bring the lawsuit ran the risk of the husband being sued for lenocinium himself . Then the charges could also be brought by third parties. The wife could not do this in the opposite case. If a father caught his daughter, who was still living in the house, committing adultery, he could kill her and the adulterer with impunity. The husband did not initially have such a right. However, he was allowed to kill the adulterer if he belonged to the negatively emphasized group of people listed in the law. In a law of the late imperial era, however, he was also given impunity for killing an adulterer caught in the act. However, this was restricted again in a Byzantine law of 542.
The punishment for adultery was death by the sword. But if a number of other laws forbade the adulteress any further marital cohabitation, such norms only made sense if the woman lived on for a longer period of time. It can be concluded from this that the severe threat of punishment did not always lead to enforcement, even in the case of convicted persons. Also, because of the severely restricted procedural requirements and numerous exceptional facts, only a very small proportion of the adulteries will have been the subject of legal proceedings at all.
Only in the late Roman law was discrimination at all restricted by specifying the grounds for divorce. In the divorce law of Theodosius (449), not only the adultery of the woman was a fundamental reason for divorce, but also that of the man. In detail, there were still inequalities to the detriment of women.
In later southern and central European law, the Roman law on adultery, mediated by the Italian criminal law doctrine, maintained a tradition of inequality for centuries. Under his influence were, for example, Art. 145 of the Bambergensis and also Art. 229, 230 Code civil and Art. 324 II, 337, 339 Code pénal . According to the latter norms, which came about under Napoleon's personal influence , a woman's adultery was always a reason for divorce. The husband's adultery only led to divorce if the husband kept his concubine in the marital home. Adultery of the woman was punished more severely than that of the man. A husband who killed his wife or lover caught in the marital home on the spot was not punished for this. There was no such privilege for a wife who caught her husband.
Among the Germanic peoples , adultery of women was sometimes a death-worthy crime. At least she had to expect to be beaten through the village with her hair shorn and naked. The bog corpses of young women have been interpreted as executed adulteresses, whereby the bog corpse of Windeby I , which has long been regarded as a girl and is one of the prime examples, is a boy according to the latest research. According to the law of the Franks , the oldest written Germanic law, robbery caused by unilateral will, unlike adultery, was not a violation of the law until the 11th century .
The Jewish tradition of the Old Testament understands adultery as outside intrusion into an established marital community. A man cannot break his own marriage insofar as only the sexual union of a married or engaged woman with another man counts as adultery - in this case, however, both are found equally guilty.
According to Deuteronomy chap. 22, verse 22, the punishment for adultery forbidden in the Seventh Commandment was the stoning of the man breaking into marriage and the unfaithful wife. In Leviticus, on the other hand, adultery was only punishable if the betrayed husband was not a stranger (Lev. 20:10). Therefore, in the case of David, there was no stoning, only a scandal, since Uriah was a Hittite . In practice, however, divorce was often the only outcome: the man abandoned his wife and married another, or divorced his wife because of adultery.
The Tanakh tells the story of King David , who impregnated the married Bathsheba while her husband Uriah was at war. In order to cover up the adultery, he tries to put the child on the husband by sending the husband to his wife on leave. Urija refuses to sleep with her out of solidarity with his comrades who are still fighting. Ultimately, he puts the man on the front line, where he is killed. David marries Bathsheba, but is sharply accused by the prophet Nathan ( 2 Sam, chapters 11 and 12) and has to repent; the child dies shortly after birth. The marriage between David and Bathsheba, however, persists, the next child is Solomon , who later succeeds David to the throne with Natan's consent.
Philo of Alexandria , a thinker of Hellenistic Judaism who lived around the birth of Christ, assigned the scattered Mosaic Laws to the Decalogue commandments, whereby the commandment against adultery included the following: premarital sexual intercourse, incest, marriage with the daughters of foreign peoples, remarriage of the same partner after previous divorce, contact during of menstruation , knowingly infertile women marriages, same-sex acts with both young men and with men, Effeminität of men, eunuchs, bestiality (zoophilia) and prostitution.
In John 8: 2–11 (so-called Pericope Adulterae , presumably not the original part of the Gospel of John) Jesus is asked whether she should be stoned to a woman who has been caught in adultery - a no would contradict the Law of Moses , a yes also, since after 5. Moses 22.24 both the woman and the man should be stoned. Jesus replied, "Whoever is sinless among you, throw the first stone at them." Then the plaintiffs leave the square. Jesus says to the woman: “I do not judge you either. From now on do not sin anymore. "
In Mark 10: 2-12, Jesus says publicly that the separation of a marriage is not in God's will for creation - as an explanation then much more clearly that every divorce is basically adultery. The corresponding passage in Matthew's Gospel condemns divorce "except for fornication". Matthew 5: 27-32 says: “You have heard that it was said: You shall not commit adultery. But I tell you: whoever looks at a woman lustfully has already committed adultery with her in his heart. It was also said: Whoever divorces his wife must give her a certificate of divorce . But I say to you: whoever dismisses his wife, although there is no case of fornication, hands her over to adultery; and whoever marries a woman who has been released from marriage also commits adultery. "
In the Catholic Church, continued adultery is viewed as a grave sin that excludes , among other things, from receiving the sacrament of the Eucharist . This exclusion can be lifted through reconciliation with God in the sacrament of penance with absolution , which in this case requires the simultaneous release of the adulterous bond. For divorced and remarried people, living together like “brother and sister” is accepted, ie without a sexual relationship.
The Eastern Churches allowed "very early divorce in the event of adultery for the innocent"; Similar ecclesiastically recognized opportunities existed for a long time in the Latin Church. The Eastern Churches oppose adultery, but allow divorced people to remarry once or twice; However, compared to a first marriage, this is performed according to a different rite in which the focus is not on festivity but on penance.
The mutual duty of fidelity in marriage is undisputed in all Christian churches to this day. There are differences in the assessment of the severity of a breach of this obligation and in the rules applicable to this case. Today these differ less according to denomination than according to conservative or liberal attitudes across denominations. For example, the attitudes of conservative Catholics and evangelicals are comparable; likewise the attitude of liberal Catholics and liberal Protestants .
The Council of Trent , in its 24th session in 1563, "according to the teaching of the gospel and the apostle" excluded from the Church those who considered remarriage in the event of adultery possible.
In classical Islamic law, adultery is not a criminal offense in its own right . Rather, the line is drawn between “permitted sexual intercourse” ( nikāḥ ) and “unauthorized sexual intercourse” ( Zinā ). Sexual intercourse is always prohibited if it takes place outside of a marital relationship or a concubinage between the man and his own slave . The sexual intercourse of an unmarried person is also considered to be zinā. However, the status of Ihsān introduces a differentiation, which means that married people who are assigned this status are punished more severely in the Zinā than those who have never been legally married. While the latter Zinā according to Sura 24: 2 is only punished with flogging, those who were or are married, according to the overwhelming opinion of legal scholars , can be recognized as stoning . The basis for this criminal law regulation are various traditions according to which the Prophet had a married man who was guilty of Zinā stoned, as well as the stoning verse .
In order for a conviction for Zinā to come about, according to classical doctrine, a fourfold voluntary confession by the delinquent or four credible male witnesses who observed the genital contact in an undisguised form is required. A husband who suspects his wife of adultery can swear a fourfold oath of curse ( liʿān ) at her expense instead of the four witnesses . Here he has to testify four times that he is speaking the truth, and the fifth time he must call upon the wrath of God if he is telling the untruth. The wife can only free herself from the effect of this oath by swearing four times that her husband lies and the fifth time swearing that the wrath of God should strike her if her husband should have told the truth (Q 24: 6-9). The marriage between the two is considered dissolved after such a process. If the woman is pregnant, the child will be assigned to her.
In September 2010 the European Court of Human Rights ruled that adultery by employees of a church or denomination only justifies their termination in exceptional cases . Around a hundred years earlier, most European countries were still using prison sentences against adultery.
In the general land law for the Prussian states , which had been in effect in large parts of the German-speaking area since 1794, adultery was in addition to "vicious abandonment", "denial of conjugal duty", "inability", "rage and madness" and various others most important burden on the basis of which a divorce could be requested:
“Causes of Divorce
§. 669. But divorces should not take place other than for very important causes.
§. 670. Adultery of which a spouse is guilty entitles the innocent part to sue for divorce.
§. 671. But if the woman is guilty of adultery, she cannot object to the divorce on the pretext that the man is guilty of the same mistake.
§. 672. Sodomiterey, and other unnatural vices of this kind, are considered equal to adultery.
§. 673. This is precisely what applies to unauthorized contact, which gives rise to an urgent presumption of violated marital fidelity.
§. 674. Mere suspicion is not enough to separate the marriage.
§. 675. If, however, there is an apparent cause for such a suspicion, the accused spouse must be legally forbidden from further contact with the suspect upon calls from the other.
§. 676. Does the same person, notwithstanding this prohibition, continue to deal with the suspect in a familiar manner; so this is a significant reason for divorce. "
According to Section 25 of the same code, persons who had been divorced for adultery were not allowed to marry the person with whom they had committed adultery. According to Section 1046, women who had been divorced because of adultery, unlike innocent women, could not claim damages from their author if they became pregnant.
According to the general land law, adultery was also a criminal offense for the Prussian states :
§. 1061. Every adultery is, however only at the request of the offended spouse, with the in the first title §. 766. sqq. punishable punishments.
§. 1062. If a marriage is actually separated by such crimes: the husband who is guilty of this with an unmarried woman is to suffer arbitrary prison sentence.
§. 1063. If, however, a wife has given rise to the separation of the marriage through her adultery with an unmarried man, she is to be sentenced to three to six months in prison or in penal service.
§. 1064. If, in the same case, both parties committing adultery were married: then both have forfeited a six-month to one-year prison sentence or sentence.
§. 1065. In all cases where criminal penalties are prescribed for certain types of fornication, these must be sharpened if the crime was committed by a married person. "
If the marriage is divorced because of it, adultery is punished with imprisonment for up to six months against the guilty spouse and his accomplices.
The persecution only occurs on request. "
In the Federal Republic of Germany, Section 172, taken from the Reich Criminal Code, was in force until August 31, 1969. In the course of the major criminal law reform , this law was deleted without replacement. Adultery is since then no longer in the Federal Republic of criminally sanctioned. Previously, in the discussion on the major reform of the criminal law, the Union parties had tabled a motion that was supposed to double the threatened prison sentence on the grounds that it had a “ moral shaping and preserving effect”, but this was ultimately not realized.
Since July 1, 1977, the First Law on the Reform of Marriage and Family Law has also eliminated the question of guilt in the event of divorce and thus no longer a reason for adultery. The only decisive factor is whether the spouses have been separated for a long time. Entitlement to maintenance is lost only in very serious cases of adultery . In general, the refusal to commit adultery in the joint home of the couple can be enforced under civil law .
As early as July 1, 1968, the criminal code of the GDR , deliberately differentiating it from West Germany, no longer contained the offenses of pimping, homosexuality among adults and adultery. The law of divorce and the consequences of divorce has been regulated regardless of fault since the EheVO of 1955, so adultery is no longer a reason for divorce and no criminal offense (see Section 172 of the Reich Criminal Code above). These regulations were also incorporated into the Family Code (FGB) of 1965.
Adultery (Art. 214 StGB) has been deleted from the Swiss Criminal Code since 1989, which had already taken place temporarily in 1875 in the canton of Geneva .
In the High Middle Ages in Vienna the death penalty was threatened by impalation if not only the adulterous man was married. In the first Austrian code of law, the Constitutio Criminalis Theresiana of 1768 (Art. 77), it was still an official offense ; since the Josephine Criminal Law of 1787 (Part 2, Sections 44-46) it was an application offense .
In the Criminal Law of 1852, which was essentially a new edition of the Criminal Law of 1803, adultery was regulated in Section 502:
"§. 502. Adultery. Punishment.
A married person who commits adultery, as well as an unmarried person with whom adultery is committed, is guilty of a transgression, and with arrest of one to six months, but the woman is then punished more severely if over by the committed adultery the legality of the subsequent birth a doubt can arise. "
From January 1, 1975 to February 28, 1997, adultery was regulated in the Criminal Code as follows:
§ 194. (1) Anyone who breaks his or another marriage is punished with imprisonment of up to six months or with a fine of up to 360 daily rates.
(2) The perpetrator is only to be prosecuted at the request of the injured spouse. The latter is not entitled to such a request if he has consented to adultery or has deliberately made it possible or facilitated or if the marital union had been terminated for a year at the time of the act. Forgiveness only removes the injured person's right to prosecute the person who has been forgiven for adultery.
(3) The punishment is not to be enforced against the spouse if the injured spouse declares that he wants to continue living with him. "
As the last secular state in Europe, Austria deleted adultery from the penal code in 1997.
There is no mention of adultery in the Criminal Code. Divorce has been legalized since 1974.
In Maryland is adultery a fee of 10 US dollars . In the US armed forces, adultery is punishable if it interferes with discipline. Half of husbands and a quarter of wives admitted adultery in the early 1950s , and there is now a balance. Around a tenth of married couples in the United States are mutually friendly in an open marriage .
In six states (as of 2019), however, there are laws on the basis of which courts recognize claims for damages on the basis of " alienation of affection " in the event of a marriage failure "for unlawful or malicious acts" , which can possibly amount to several million USD.
Middle East and North Africa
The legal situation in the countries of the Middle East and North Africa is very different. In some states and regions with an Islamic legal system, in which the Hadd punishments are still applied, including Iran , Saudi Arabia , Pakistan , Sudan , Yemen and Mauritania , adultery is available, which in the sense of classical Islamic law is Zinā in the Ihsān state is interpreted, nor the stoning, whereby this punishment is partially carried out. Stoning without judgment has also become known in other countries such as Afghanistan , Iraq and Somalia .
The 2011 version of the Jordanian Penal Code differentiates between Zinā for married people and Zinā for unmarried people. According to Art. 282, Paragraph 2, the married couple's zinā, i.e. adultery, carries a prison sentence of two to three years. If the adultery was committed at the marital residence, the prison sentence is three years in any case (Art. 282, Paragraph 3). The detection of the delinquent in the act, an admission of guilt in court or documents that clearly prove the act are recognized as evidence (Art. 283). However, prosecution may only commence if the still married spouse has brought an action (Art. 284, Paragraph 1). In order for the action to be valid, it must be filed within a period of up to three months after becoming aware of the fact and up to one year after the incident (Art. 284, Paragraph 2). The husband who catches his wife red-handed in adultery and kills or injures her or her partner benefits from a reduction in the sentence (Art. 340, Paragraph 1). The same applies to the wife who catches her husband red-handed in adultery and takes action against him or his partner (Art. 340, Para. 2).
In other countries where western-oriented criminal codes were introduced in the 20th century, Zinā is no longer used in the sense of classical Islamic law, but as a translation for the western legal concept of adultery. Zinā / adultery is still a criminal offense in Egypt , although a distinction is made between men and women. Women are sentenced to up to two years 'imprisonment for adultery, while men are only punished with up to six months' imprisonment and only if they committed adultery at their marital home.
In Tunisia , as in Jordan, the spouse has the option of suing for adultery. The right to marital fidelity does not end with the final divorce, but only when the statutory waiting period has expired. An adultery lawsuit usually results in criminal prosecution. A prerequisite, however, is recognized evidence of the misconduct such as being caught red-handed, testimony, documents or admission of guilt. As a rule, however, it is difficult to prove marital infidelity. The adultery suit can be withdrawn at any stage of the judicial process. If one of the spouses withdraws their allegation of adultery, the prosecution is also suspended.
In Turkey , Zinā / adultery is only relevant in divorce law. The Turkish civil code , which is based on the Swiss civil code , lists it under the special reasons for divorce (see Turkish divorce law ). The AKP government wanted to make adultery a criminal offense by law in 2004, but had to refrain from doing so again due to the great opposition of the Turkish public and political pressure from EU countries.
There is no legal regulation for adultery in the People's Republic of China .
In India , adultery was a criminal offense between 1860 and 2018. According to this, men who slept with married women and whose husbands did not agree could face up to five years in prison. In 2018, the Supreme Court of India declared the law unconstitutional due to equality between women and men .
In the Philippines - as an example of a Catholic state - adultery is a punishable offense, but even leading politicians take turns publicly with their wife and a concubine . According to the constitution, divorces are only allowed for the Muslim minority.
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