VOLUME 2, ISSUE 46 | NOVEMBER 13 - 19, 2003

LEGAL/DIVORCE



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 Clinton’s 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 Hampshire’s 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 Hampshire’s divorce law does not define “adultery.”

The trial court agreed that Ms. Blanchflower’s affair with Mayer constituted adultery, and denied a motion to reject Mr. Blanchflower’s amended petition. Then Mayer appealed to the state Supreme Court.

Writing for the Supreme Court, Justice Joseph Nadeau looked to Webster’s 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 Webster’s 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 Hampshire’s 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 court’s majority of evading modern reality.

“To strictly adhere to the primary definition of adultery in the 1961 edition of Webster’s Third New International Dictionary and a corollary definition of sexual intercourse, which on its face does not require coitus, is to avert one’s 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 Brock’s 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 states––Florida, Georgia, and South Carolina––had 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 state’s divorce statute before too long.

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