Civil Remedy to a Civil Action: Adultery and a Shifting Societal Perspective

Adultery is still a criminal offense in Virginia, but there is a bill pending in the House that would change this law. The bill proposes the punishment of Code §18.2-365 regarding adultery be reduced from a Class 4 Misdemeanor to a civil penalty of not more than a $250 fine. This would make adultery a civil offense, not a criminal one.

Considering this change from a legal perspective, it is important to note that Virginia is one of only 23 states to still consider the act criminal. Consequently, the Commonwealth’s court system has reacted where proven with a civil penalty with punishment typically shown in a lesser percentage of marital property or reduction or termination of spousal support to the offending party.

It makes sense then to codify a law that is already in practice. There is a larger point to be made, though. That point derives from the society we’ve become in this country. To be clear, the common law put into legal effect by our American government after the American Revolution in 1783 was a direct adaption of the laws of England first established in 1150 by Henry II of England.Year 1150. We’ve come a long way. Or have we?

The Evolution of Marriage

At some point amongst these changes from the way we were to the way we are, somebody needs to ask “to what end?”
I spoke to a woman on the phone yesterday who told me, “Society makes it easier to give up on marriage.” She has a valid point. But such a statement needs to be considered in the context of society’s current condition. What if, instead, we were not giving up on the tradition of
marriage, but as a society we have begun to shed our traditional construct of marriage as we know it, like a reptile’s skin to be molted when it is too worn and aged to serve a purpose.

Laws and statutes reflect the society they serve, albeit a little behind the curve, and existing attitudes and values. I’m not attempting to pinpoint where on the curve Virginia lies, but society has undergone a great shift since English common law was adopted by the American
legislature in the 18th century.

Having a governing body that adapts to the beliefs of the people it governs is fundamental to this country’s political and economic future. 19th century founding sociologist Émile Durkheim referred to this as the collective consciousness.

Two Treatises on Government set forth John Locke’s philosophy of the social contract. According to Locke, a working social contract exists only when society gives explicit consent to its governing body. In exchange for leaving its State of Nature and joining the
governed majority, the people receive in return three elements previously missing in their ungoverned state: 1) laws, 2) adjudication and 3) the power of enforcement.

Perfect. That is, until the governing and the governed are in contention. Locke continues to state that this contract goes awry if government no longer properly accommodates an attitudinal shift of its people. Durkheim and Locke may be 19th century philosophers, but their writings indicate _______ must adapt to the fundamental cultural shift underway.

Where is marriage headed in Virginia?

To an extent, one might think that this country needs to have an open debate on the issue. Ah, herein lies the problem. With this honesty comes the counter opinion that morally, society hasn’t liberated itself but only transgressed. We all know adultery is wrong. Does this society truly need an entirely new set of rules toplay by because its morals have slackened? Perhaps, what we need to do is reassess our current moral state.

The issue at hand isn’t about what is right or wrong. It is whether our present laws match most peoples’ attitudes and the reality of law. Some will allege their claim on the moral high ground regarding these cases of adultery. It may now be time to recodify how the law addresses adultery in Virginia.

Let the conversations begin. 

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