Lesbian Sex Stirs Divorce Controversy
New Hampshire high court wrestles with
outmoded adultery language in statute
By ARTHUR S. LEONARD
In an action reminiscent of former Pres. Bill Clintons explanation that he did not have sex with Monica Lewinski because he did not consider fellatio to be sex, the New Hampshire Supreme Court ruled on November 7 that Robin Mayer, a lesbian woman, did not commit adultery when she had a sexual relationship with another woman, Sian Blanchflower.
According to the opinion of three members of the court, lesbian sex is not sexual intercourse.
This odd case arose when David Blanchflower filed for divorce from his wife Sian under New Hampshires no-fault divorce law, which generally results in an even split of marital assets. But after discovering that his wife had dallied with Mayer, Mr. Blanchflower amended his petition to add her as co-respondent and to seek a fault divorce for adultery. In that type of divorce, a court can take into account the fault of the erring party in dividing marital assets.
But New Hampshires divorce law does not define adultery.
The trial court agreed that Ms. Blanchflowers affair with Mayer constituted adultery, and denied a motion to reject Mr. Blanchflowers amended petition. Then Mayer appealed to the state Supreme Court.
Writing for the Supreme Court, Justice Joseph Nadeau looked to Websters dictionary for a definition of adultery. He found adultery defined as voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband. Looking further in the dictionary, he found sexual intercourse defined as coitus, copulation, further defined as insertion of the penis in the vagina.
Clearly, as far as the publishers of this particular Websters dictionary were concerned back in 1961, sexual intercourse can only take place between a man and a woman.
Nadeau bolstered his conclusion that Robin and Sian did not engage in sexual intercourse by reference to early New Hampshire decisions in which adultery was at issue and always appeared to involve sexual intercourse between a man and a woman. In an age before DNA analysis or blood-typing, such adultery laws served a variety of purposes, such as ensuring inheritance rights and patrimony.
Nadeau rejected the argument that treating homosexual and heterosexual sex differently amounted to unequal treatment contrary to New Hampshires public policy of equality and prohibition of discrimination based on sex and sexual orientation.
Homosexuals and heterosexuals engaging in the same acts are treated the same, he wrote, because our interpretation of the term adultery excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that persons of the same gender cannot, by definition, engage in the one act that constitutes adultery under the statute.
In a dissenting opinion, Chief Justice David Brock accused the courts majority of evading modern reality.
To strictly adhere to the primary definition of adultery in the 1961 edition of Websters Third New International Dictionary and a corollary definition of sexual intercourse, which on its face does not require coitus, is to avert ones eyes from the sexual realities of our world, he wrote.
In this case, Brock argued, the purpose of the statute is to authorize courts to take fault into account in dividing assets in a divorce case where one spouse is at fault. By listing adultery as a fault ground, the legislature was clearly, at least in Brocks view, providing that sexual misconduct, in the form of violating the marriage vows of sexual exclusivity, should be one of the bases for triggering the fault divorce provisions, regardless of the sex of the paramour.
Writing for the majority, Nadeau also asserted that expanding the scope of the law without providing any bright lines or simple tests for determining what conduct qualified as adultery, would prove problematic. Could a jealous husband cry adultery when he caught his wife kissing the mailman, for example? Relying on a standard of sexual intercourse as narrowly defined relieves the court from having to make such judgment calls.
Brock totally rejected this argument, observing that appellate courts in at least three statesFlorida, Georgia, and South Carolinahad reached conclusions contrary to the New Hampshire Supreme Court majority.
It is improbable that our legislature intended to require an innocent spouse in a divorce action to prove the specific intimate sexual acts in which the guilty spouse engaged
Nor does it seem reasonable that the legislature intended to allow a guilty spouse to defend against an adultery charge by arguing that, while he or she engaged in intimate sexual activity with another, the relationship was not adulterous because it did not involve coitus, Brock concluded.
Experts suspect the New Hampshire legislature may decide to clarify the states divorce statute before too long.