“Was that wrong?” — New York Times and adultery

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The New Criterion is my favorite journal. I discovered the magazine when I was in college and have been a fan of the monthly ever since, reading the magazine cover to cover when it hits my doorstep. And ArmaVirumque, the New Criterion‘s blog, is a site I visit frequently.

I mention my views on this point, as the New Criterion‘s media critic, James Bowman, has published a post entitled “Medieval Barbarism — It Wasn’t All Bad” that captured much of what I wanted to say about a recent story in the New York Times on the topic of adultery.

The Times article of 15 Nov 2012 entitled “Adultery, an Ancient Crime That Remains on Many Books”  jumped out at me as a strong story for GetReligion. I was mulling over the approach I would take, trying to find the right literary or pop culture angle to open my critique, when I read James Bowman’s piece. And, my work was done, for I doubt anyone could have done a better job that Bowman on this story. I will add in my own GR hook further down in this story (to justify my post to GR’s editor), but lets start with the Times piece in question and Bowman’s response.

The New York Times story is a European-style advocacy piece. Though it appears on page A12 in the news section, it rightly belongs on the opinion pages as it is more of a lecture than reporting. I know what the Times‘ thinks about adultery after reading this article, but I did not learn much about adultery. (Perhaps I should take the Post or Daily News instead.)

It opens with:

When David H. Petraeus resigned as director of the C.I.A.because of adultery he was widely understood to be acknowledging a misdeed, not a crime. Yet in his state of residence, Virginia, as in 22 others, adultery remains a criminal act, a vestige of the way American law has anchored legitimate sexual activity within marriage.

In most of those states, including New York, adultery is a misdemeanor. But in others — Idaho, Massachusetts, Michigan, Oklahoma and Wisconsin — it is a felony, though rarely prosecuted. In the armed forces, it can be punished severely although usually in combination with a greater wrongdoing.

This is yet another example of American exceptionalism: in nearly the entire rest of the industrialized world, adultery is not covered by the criminal code.

Like other state laws related to sex — sodomy, fornication, rape — adultery laws extend back to the Old Testament, onetime capital offenses stemming at least partly from a concern about male property. Peter Nicolas of the University of Washington Law School says the term stemmed from the notion of “adulterating” or polluting the bloodline of a family when a married woman had sex with someone other than her husband and ran the risk of having another man’s child.

The article continues in this vein with four more law school professorial voices advancing the same line, speaking in censorious tones of the past and the enlightened future we face once the shackles of our repressed sexuality and repressive society are loosed. And then I read Bowman’s response. After he read this piece he:

immediately thought of the great “Seinfeld” episode of 1991 in which George Costanza is caught engaging in sexual relations with the cleaning woman on his desk. Called on the carpet for it, he says to his boss: “Was that wrong? Should I not have done that? I’ll tell you, I’ve got to plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon — because I’ve worked in a lot of offices and I tell you people do that all the time.” Jason Alexander, who played George, is supposed to have said that this is his favorite moment from the series and the defining one for his character. Twenty-one years later it’s still funny, too, …

In today’s Times, for example, the editors seemed to think in all seriousness that, in the wake of the Petraeus scandal, their readers are in need of an exploration of what people used to think was wrong with adultery in order to explain why, as “a vestige of the way American law has anchored legitimate sexual activity within marriage,” it is still illegal in 23 states. Basically, we find, this is because the stigma on adultery is a primitive relic of patriarchal societies having to do with the prevention of pollution (i.e. “adulteration”) of male blood lines. Melissa Murray, a professor of law at Berkeley, reports the Times, “said her research had led her to conclude that laws regulating sex emanated from a notion that sex should occur only within marriage.” Well I never. Have you ever heard of such a thing?

Criminal law, she said, was there to reinforce marriage as the legal locus for sex. So any other circumstance — sex in public or with a member of the same sex, or adultery — was a violation of marriage. “Now we live in an age when sex is not limited to marriage and laws are slowly responding to that,” she said. “But we still love marriage. Nobody is going to say adultery is O.K.”

Bowman has it in one. (Do look into the New Criterion if you have not already done so — it is worth your time.)

This article is not a news article. It is the Times‘ midweek sermon — an episode of moral enrichment that will make us (the reader) better people for having read these sonorous solipsisms on sex. The Times writes as if only its voice and the voices of its acolytes are the only voices that speak on this issue. Other voices, other minds, other worlds, do not exist.

Let me step back a bit and ask where were the contrary voices? The way the article was framed it appeared nigh but impossible for any argument to exist other than that espoused by the author. Yet, there are quite a few moral philosophers, law school professors, even (heaven forefend) clergy, who would offer a contrary view about marriage, adultery and the law.

As journalism this article falls short. It is preachy, one-sided and self-righteous. It really isn’t journalism as it is understood in the classical liberal sense. It is an advocacy piece.

As I have said before in the pages of GetReligion there is nothing wrong with advocacy journalism — when a newspaper is honest about what it is doing. The Times, however, believes it is writing balanced, fair and full news stories. This article does not do that.

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About geoconger
  • Kate

    Nothing to do with the topic…just nitpicking because it’s going to drive me crazy on a blog about journalism.

    I think you meant to write ‘nigh but impossible’ rather than ‘neigh but impossible’ in the third paragraph from the bottom. Unless, of course, you meant to indicate that only horses have something to say on the topic. ;-)

  • bob

    I read that article this morning and was just as amazed. Adultery adulterates…..Bloodlines?? Not a relationship? The authors so neatly wrapping up the whole of Jewish tradition seem to have missed all the language about marriage and adultery talking about the marriage of God and Israel — and the adultery of following other gods. Ten Commandments and all that. It was an amazingly secular article about a topic that once might have been seen as a religious thing, but they, like, don’t get it.

    • Will

      And it has nothing to do with adultery being OATHEBREAKING?

  • http://www.doulos.at Wolf Paul

    @bob: that is because the purveyors of the idea that all of traditional morality is motivated be a desire to support and shore up patriarchy at the expense of women’s rights sincerely believe that any religious reasons for that traditional morality are mere pretexts or rationalizations for what in reality is driven by male power lust.

  • Chuck

    It is probably necessary to realize that while the laws may be on the books it is probably impossible to enforce them and certainly none of them would withstand a constitutional challenge. They are of the same importance as some of the stranger laws still out there, like the ones naming coleslaw Liberty Cabbage and other such archaisms.

  • Martha

    Okay, so if we should drop the concept of “adultery” because that’s too old-fashioned and paternalistic and doesn’t apply to modern marriage, what about “cheating”? If all these married people are having all these affairs, what about the unmarried? Does it matter if Joe cheats on Annie with whom he is cohabiting but not married? Or is that better? Worse? I’m so confused!

    Someone should start a campaign for adultery cheating panamorous (not to be confused with polyamorous) equality. It’s not fair that married people get all the fun from illicit thrills of breaking social taboos and the cohabiting don’t!

  • Sari

    I agree with your assessment of the journalistic aspects but do feel that the Times accurately portrayed marriage and adultery in Hebrew Scripture. Marriage was a contract between two families; the contract (ketubah) spelled out each party’s obligations. Women’s right to have sex was clearly confined to sex with her husband, and. penalties were spelled out for losing virginity before marriage and perceived infidelity (notably the sotah, a woman accused of carrying another man’s child). Because the halakhah allows a man multiple wives, Petraeus’ sin was to have relations with a married woman; had she been unmarried, consensual sex would have constituted a marriage and adultery in the biblical sense not committed.

    The Times erred by writing an opinion piece, but we should be careful not to superimpose one religion’s understanding of marriage and adultery upon another’s.

  • Dave

    You wrote, “As journalism this article falls short. It is preachy, one-sided and self-righteous. It really isn’t journalism as it is understood in the classical liberal sense. It is an advocacy piece.”

    I’m shocked that this seems to come as a surprise to you. That is quintessential NY Times writing for the past two decades. I read it to understand what the East coast effete elites think, not for news.

  • Becky

    “But we still love marriage.” Odd choice of words. Perhaps revealing.

    People love weddings because weddings are big parties, but anyone who has been married for any length of time knows that marriage is a lot of hard work, with give and take. You’re not supposed to love marriage, you’re supposed to love your marriage partner, for better, for worse, for richer, for poorer, in sickness and in health, until death do you part.

    Peter Nicolas of the University of Washington Law School says the term stemmed from the notion of “adulterating” or polluting the bloodline of a family when a married woman had sex with someone other than her husband and ran the risk of having another man’s child.

    I notice that the article never considers that a woman’s interests, and the interest of her child, can be protected by these laws. Do I want my husband running around fathering other children he will have to support?

    “Nobody is going to say adultery is O.K.” At least not right away. Not until you are bored with the object of your affections?

  • Harris

    I must not have the NYT decoder ring that everyone else apparently has. Whether this article is to be considered advocacy turns in part on whether one reads it as a limited exploration of the status of adultery in the criminal code, or as a broader discussion of adultery’s status in culture, a moral argument. I would submit that this latter position is not supported by the article in question.

    The outrage that apparently is generated by Peter Nicolaus’ comment about “adulterating” was easily settled in the subsequent graf, Ethan Bronner turns to Boston University professor who provides an 1838 case using precisely the language of adulteration, and then contrasts it with a 1992 case reflecting the current relational understanding of adultery.

    As a matter of journalism, were I interested in the status of adultery in U.S. law, wouldn’t I consult precisely the sorts of experts cited in the article (e.g. in 2010 Prof Melissa Murray was recognized as one of the top junior faculty in the country)? I would suggest that even the kick at the end, that “nobody is going to say that adultery is OK,” reinforces the frame of the article, that it is about the legal status of adultery, and not its morality.

    Were one to assert that what is at stake is the status of adultery in law, wasn’t that the question Professor Murray posed? She both noted the impact of Lawrence and how that case undermined the status of adultery as a crime, while also noting the continuing utility of adultery in divorce proceedings.

    Obviously, I do not have the decoder ring, but from my reading the article presented a rather limited inquiry into the status of adultery in American legal code. Unless one holds that the mere consideration of a topic constitutes its advocacy, I can not see how this rises to the level of advocacy, let alone meriting the sort of indignant hrummphing it received.

    • geoconger

      Harris your arguments would be on the mark if this were not presented as a news story. Were it an opinion piece, magazine article or feature story then much of what I disliked would not be at issue. But this was packaged as a news story and as such must live or die by those standards. It is to those standards I refer when I say this was a poor outing for the New York Times.

  • Kristen inDallas

    Wondering why none of the editors over at the NYT bothered to point out that a passing reference to rape in the context of an article about anachronistic sex laws might read as a tad insensitive. And yes, I get that that particular sentence is focused on the common historic origins of sex laws, but I think if you’re going to lob it out there (charged a subject as we all know it is) you owe the 1/5 female readers the courtesy of a second sentence distinguishing what makes rape different and not an “irrelevant” law. (Or concede the idea that they may all have some relevance.)

  • http://christianitytomorrowblog.wordpress.com/ Lyric

    I’ve always loved that Seinfeld scene, and I love how it adds the perfect touch of snark to this piece. The NYT truly lives in a world of its own, where even the idea of adultery being wrong must be explained to the reader in historical, anthropological terms. The Seinfeld characters, appropriately set in New York, do seem to embody many aspects of the NYT universe. They live by trendy moral values, losing or gaining them whenever convenient, lying compulsively, and thumbing their noses at true integrity.

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