“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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