What is Adultery? The Legal Perspective
Whether a person has committed adultery can be important for a number of reasons. First, there is the Biblical injunction, "Thou Shalt Not Commit Adultery." But on this site, we are more interested in the legal implications of adultery. Adultery is a fault-based gorund for divorce in most states. It is a crime in about two dozen states and under the Uniform Code of Military Justice.
So, just exactly what is adultery? In our home state of Texas, one of the seven grounds for divorce is adultery. Section 6.003 of the Texas Family Code states: "The court may grant a divorce in favor of one spouse if the other spouse has committed adultery."
Most states define adultery as voluntary sexual intercourse by a married person with someone besides his or her spouse. Texas follows this definition. For example, in 2009, the Dallas Court of Appeals defined "adultery" like this:
"Adultery" means voluntary sexual intercourse of a married person with one not the spouse. See Bell v. Bell, 540 S.W.2d 432, 435 (Tex. Civ. App. – Houston [1st Dist.] 1976, no writ).
In re S.A.A., 279 S.W.3d 853, 856 (Tex. App. – Dallas 2009, no pet.).
How is adultery proved? We quote again from In re S.A.A.: "Although adultery may be proved by direct and circumstantial evidence, clear and positive proof is necessary and mere suggestion and innuendo are insufficient. See Miller v. Miller, 306 S.W.2d 175, 176 (Tex. Civ. App. – San Antonio 1957, no writ)."
At one time committing adultery was a crime in Texas. Here is some colorful language from a Texas Court of Criminal Appeals decision in 1908:
That the parties were infatuated with each other is an admitted fact in the case, but no witness saw them having intercourse, and they both deny this under oath. If the case should be viewed theologically, the case might be sufficiently made out, for under the bible theory of adultery a man or woman who looks upon each other lustfully is guilty of adultery in his or her heart, but that it is not sufficient to meet our legal definition. There must be in Texas something more than a lustful desire; there must be the act of sexual intercourse. However spiritually or morally wrong it may be to lust after the woman in this case, appellant was not shown to have gone further, at least with sufficiently cogent evidence to justify the conviction. There must be acts of intercourse.
Green v. State, 53 Tex. Crim. 540, 541 (Tex. Crim. App. 1908).
We see, then, that adultery requires sexual intercourse. It appears that nothing less will suffice.