ADULTERY (from Latin adulterium, that is, according to a probable etymology, ad alterum torum accessus). - It is the illicit union of two persons of different sex, of whom at least one is married.
1. HISTORICAL NOTES
Among ancient peoples, the violation of conjugal fidelity constituted a most grave fault, punished for the most part with death, only when it was committed by the woman. Thus, in Babylon, the code of Hammurabi provided that the adulteress caught in the act be killed together with her accomplice; and the same sanction was prescribed by the Mosaic law (Lev. 20:10; Deut. 22:22), which, in the case that the crime could not be proven in any other way, allowed the husband to have the wife subjected to the ordeal of the bitter water (Num. 5:11-31).
Roman law did not originally contain particular norms on adultery, the repression of which was left to the discretion of the domestic tribunal or to the vengeance of the outraged husband. Only at the decline of the republic, with the Lex Iulia de adulterii coercendis (18 B.C.), did the adultery of the wife - except in the case of a slave woman or one of ill repute - come to be considered as an offense against good morals, ordinarily punishable, following a publica accusatio, with relegation and with confiscation of goods: penalties which the pagan emperors then aggravated to the point of capital punishment.
Christian doctrine and morality, rebuilding on new ethical and religious foundations the institution of marriage elevated to the dignity of a sacrament, were bound to influence profoundly the primitive conception of adultery, not only in the sense of a milder repression in view of a possible efficacious repentance (John 8:3-11), but also and above all in the sense of an absolute equalization of mutual rights and duties between man and woman (I Cor. 7:4). The adultery of the husband was therefore held by the Church to be just as sinful as that of the wife, 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). In the first two centuries, it was numbered, at least in certain Churches, among the irremissible sins (understood according to canonical discipline, for in foro conscientiae irremissible sins do not exist), in the same category as apostasy and homicide; later, beginning with the edict of Pope Callistus (217-22), absolution was permitted on condition of regular public penance; and finally the practice prevailed of subjecting the guilty party to a penance of ten years if a cleric and seven if a layman (c. 5, D. LXXXII; c. 27, C. XXVII, q. 1).
2. ADULTERY AS SIN AND AS ECCLESIASTICAL CRIME
That adultery constitutes an open infraction of the sixth precept of the decalogue and represents a mortal sin not only against chastity, but also against justice with regard to the innocent spouse (to which may be added the injury brought upon the legitimate children by the eventual birth of adulterine offspring) is something that needs no demonstration.
Theologians customarily distinguish simple adultery, which takes place when only one of the guilty parties is married, from double adultery, which occurs instead when both are united in marriage. In the first case, it is clear that the unmarried person can be considered formally an adulterer only insofar as he is aware of the matrimonial bond by which the other is bound. The tolerance or, worse, the consent of the offended spouse does not cause the adultery to cease, since the right to fidelity, acquired in the very act of the celebration of marriage, is by its nature inalienable and imprescriptible; and this in conformity with the teaching of Innocent XI, who in 1679 expressly condemned the proposition: «Copula cum coniugata consentiente marito non est adulterium».
In consideration of the grave prejudice that can derive from it to the order of families and, in general, to public morality, adultery is furthermore contemplated by the Code of Canon Law among the crimes against good morals and punished more or less gravely according to the subjective and objective circumstances that accompany it. The layman who has made himself responsible for public adultery (such, that is, as to be able to cause scandal among the faithful) incurs exclusion from legitimate ecclesiastical acts until he has given signs of sincere repentance (can. 2357, § 2); and to the same penalty is subject the minor cleric, for whom is furthermore provided, in the graver cases, reduction to the lay state (can. 2358). As for those ordained in sacris, can. 2359 distinguishes between simple adultery - generically comprised in the phrase: Si... contra sextum decalogi praeceptum deliquerint - and the true and proper adulterous relationship: Si adulterium... exercuerint. For the first case the imposition of fitting penalties (not excluding deprivation of office or benefice) is left to the discretion of the judge, to be measured from time to time according to the gravity of the crime; for the second are provided suspension, declaration of infamy, deprivation of any office, benefice, charge and dignity, and even - where circumstances require it - the deposition of the guilty party.
Common presupposition to these various criminal figures is the existence of a valid marriage, even if merely ratified. The consummative moment of the crime - which, according to the dominant doctrine, does not admit the hypothesis of attempt - coincides with sexual contact. The psychological element consists in the dolus, that is, in the consciousness and will to unite carnally with a person united in marriage or to violate the obligation of fidelity inherent in one's own condition as a married person. Since it is a bilateral crime (which requires by its nature the concurrence of two persons), the one and the other guilty party are subject to the same penalties, insofar as they are applicable (cf. cann. 2209, § 2 and 2231). Given, finally, the extreme difficulty of obtaining material proof of the offense, the ancient canonical practice suggested certain presumptions - natural and legal - to which the judge may even today usefully have recourse.
3. ADULTERY IN CIVIL LEGISLATION
Although there has been long discussion in the past (and there are those who still discuss it) concerning the advisability of criminalizing adultery, all the legislations of the civilized world - except the Danish Code of 1933 - repress this crime to varying degrees. The penal Code in force in Italy (arts. 559-563), confirming the traditional and not well justified difference of treatment between the infidelity of the man and that of the woman, punishes in all cases the adultery of the wife (for whom is provided as an aggravating circumstance the fact of maintaining an adulterous relationship), while it considers as a crime the adultery of the husband only where it assumes, by its habitualness and notoriety, the characteristics of concubinage (v.). In both hypotheses the crime is punishable on complaint of the offended spouse, and the penalty is that of reclusion up to a maximum of two years. The legal separation pronounced through the fault of one of the spouses excludes the punishability of the other.
For adultery as a matrimonial impediment see the entry CRIMINE, IMPEDIMENTO del; and as a cause of personal separation, v. SEPARAZIONE DEI CONIUGI.
For adultery among primitive peoples v. FAMIGLIA.
Bibliography4 works
Ferruccio Liuzzi