ADULTERIO (from Lat. adulterium, that is, according to a probable etymology, ad alterum torum accessus). — It is the illicit union of two persons of different sex, at least one of whom is married.
1. HISTORICAL NOTES
Among ancient peoples, violation of conjugal fidelity constituted a very serious offense, generally punished by death, but only when committed by the woman. Thus, in Babylon, the Code of Hammurabi provided that an adulteress caught in the act should be put to death together with her accomplice; the same sanction was prescribed by Mosaic law (Lev. 20:10; Deut. 22:22), which, if the crime could not be proved in any other way, allowed the husband to have his wife subjected to the ordeal of the bitter water (Num. 5:11–31).Roman law originally contained no particular provisions concerning adultery, its repression being left to the discretion of the domestic tribunal or to the vengeance of the insulted husband. Only at the close of the Republic, with the Lex Iulia de adulterii coercendis (18 B.C.), was the adultery of the wife — except in the case of a slave woman or an infamous woman — regarded as an offense against good morals, ordinarily punishable, following publica accusatio, by relegation and confiscation of property: penalties which the pagan emperors subsequently intensified to the extreme punishment.
Christian doctrine and morality, reconstructing the institution of marriage on new ethical and religious foundations and elevating it to the dignity of a sacrament, were to exert a profound influence on the primitive conception of adultery, not only in the direction of milder repression, in view of the possibility of effective repentance (Io. 8:3–11), but also, and above all, in the direction of an absolute equalization of reciprocal rights and duties between man and woman (I Cor. 7:4). The husband’s adultery was therefore considered by the Church just as sinful as the wife’s, since eadem a viro quae ab uxore debetur castimonia (c. 4, C. XXXII, q. 4), and christiana religio adulterium in utroque sexu pari ratione condemnat (c. 23, C. XXXII, q. 5). During the first two centuries, it was counted, at least in some Churches, among unforgivable sins (understood according to canonical discipline, since in foro conscientiae there are no unforgivable sins), on the same level as apostasy and homicide; later, beginning with the edict of Pope Callistus (217–22), absolution was permitted on condition of suitable public penance; and finally the practice prevailed of imposing ten years’ penance on the guilty person if a cleric, and seven years’ penance if a layman (c. 5, D. LXXXII; c. 27, C. XXVII, q. 1).
2. ADULTERY AS A SIN AND AS AN ECCLESIASTICAL OFFENSE
That adultery constitutes an open violation of the sixth commandment of the Decalogue and represents a mortal sin not only against chastity but also against justice toward the innocent spouse (to which may be added the injury inflicted on legitimate children by the possible birth of adulterous offspring) is something that requires no demonstration.Theologians ordinarily distinguish simple adultery, which occurs when only one of the guilty parties is married, from double adultery, which occurs when both are married. In the first case, it is clear that the unmarried person can be considered formally adulterous only insofar as he or she is aware of the matrimonial bond by which the other person is bound. The tolerance or, worse, the consent of the offended spouse does not eliminate the adultery, since the right to fidelity, acquired at the very moment of the celebration of marriage, is by its nature inalienable and imprescriptible; this is in conformity with the teaching of Innocent XI, who in 1679 expressly condemned the proposition: “Copula cum coniugata consentiente marito non est adulterium.”
In view of the serious harm that may result to the order of families and, in general, to public morality, adultery is also included by the Code of Canon Law among offenses against good morals and is punished more or less severely according to the subjective and objective circumstances accompanying II. A layman responsible for public adultery (that is, adultery capable of causing scandal among the faithful) incurs exclusion from legitimate ecclesiastical acts until he has given signs of sincere repentance (can. 2357, § 2); and the minor cleric is subject to the same penalty, with reduction to the lay state also provided, in the more serious cases (can. 2358). As for those ordained in sacris, can. 2359 distinguishes between simple adultery — generically included in the wording: Si... contra sextum decalogi praeceptum deliquerint — and a genuine adulterous relationship: Si adulterium... exercuerint. In the first case, the imposition of suitable penalties is left to the discretion of the judge (including deprivation of office or benefice), to be determined each time according to the gravity of the offense; in the second, suspension, declaration of infamy, deprivation of any office, benefice, position, and dignity, and even — where the circumstances require it — deposition of the offender are prescribed.
Common to these various criminal forms is the existence of a valid marriage, even if merely ratified. The consummation of the offense — which, according to the prevailing doctrine, does not admit the possibility of an attempt — coincides with sexual contact. The psychological element consists in intent, that is, in the awareness and will to have carnal relations with a person bound by marriage, or to violate the obligation of fidelity inherent in one’s condition as a married person. Since it is a bilateral offense (which by its nature requires the concurrence of two persons), both guilty parties are subject to the same penalties, insofar as they are applicable (cf. cann. 2209, § 2 and 2231). Finally, given the extreme difficulty of obtaining material proof of the offense, ancient canonical practice suggested certain — natural and legal — presumptions, to which the judge may still usefully have recourse today.
3. ADULTERY IN CIVIL LEGISLATION
Although the desirability of criminalizing adultery has been long debated in the past (and some continue to debate it), all the legislations of the civil world — with the exception of the Danish Code of 1933 — repress this offense to varying degrees. The Penal Code currently in force in Italy (arts. 559–563), confirming the traditional and poorly justified difference in treatment between male and female infidelity, punishes the wife’s adultery in all cases (with the fact that she maintains an adulterous relationship provided as an aggravating circumstance), whereas it regards the husband’s adultery as a crime only when, by reason of its habitual and notorious character, it assumes the features of concubinage (v.). In both cases, the offense is punishable upon complaint by the offended spouse, and the penalty is imprisonment for up to two years. Legal separation pronounced on account of the fault of one of the spouses excludes the punishability of the other.For adultery as a matrimonial impediment vedi CRIMINALE, IMPEDIMENTO del; and as a ground for personal separation, V. SEPARAZIONE DEI CONIUGI.
For adultery among primitive peoples V. FAMIGLIA.