Legislating on Virtual and Physical Infidelity

Surprisingly, many have woken up to the reality that Americans are succumbing to either physical or virtual infidelity. A 2002 survey taken by the American Academy of Matrimonial Lawyers found that internet pornography was a significant factor in 56% of divorce cases the prior year. In 2012, the Journal of Marital and Family Therapy reported that 41% of marriages reported that one or both spouses admitted to infidelity (either physical or emotional).

Why is this happening? One reason is the Sexual Revolution itself. The simple fact is that many people believe in sex without consequences. This ideological belief has led to the second reason why such activity is taking place—many states have made divorce easier to attain and repealed laws that strongly discouraged extramarital affairs.

The question remains, what can society do in the face of unbridled pornography and no-fault divorce laws? Many organizations have tried to help roll back the evil of divorce by proposing limitations on permissive laws by requiring mandatory counseling periods. No doubt, good counseling can save marriages and so these laws certainly help. But there are other legislative initiatives that may help save the institution of marriage and discourage infidelity. In my opinion, states need to reenact what are known as “alienation of affection laws”. Essentially, these laws allowed the deserted spouse to sue a third party who was responsible for the dissolution of the marriage.

With the passage of no-fault divorce laws in the 1970s, many states began to abolish this legal remedy. Many divorce lawyers have justified abolishing alienation of affection laws on the basis that adultery is so commonplace that when these lawsuits are brought forth, it makes an already tense situation more polarizing. However, this is a completely fallacious argument for abolishing these laws. When the law was abolished it allowed a very inappropriate behavior to essentially become appropriate. As a result there is virtually nothing under the law to deter a third party from willingly engaging in a relationship with a married person. The devastating consequences of divorce are widely known; from children suffering from all sorts of behavioral problems to women becoming less financially solvent. But when these laws were abolished no one seemed to realize that what was being furthered was a mentality that extramarital sexual consent was now licit under the law.

I would go even further to say that the new alienation of affection laws should be produced with a modification not only to allow the victimized spouse to sue the “other person”, but also the producers of internet pornography if this was a reason for the divorce. Simply put, if the spouse makes reasonable effort to inform those producers, such as by e-mail, that the website in question is detrimentally affecting the marriage and to block the other spouse from the website and the producers fail to do so, then the spouse should have standing to sue.

No doubt some detractors of such legislation will argue that it would violate freedom of speech. However, this is a rather baseless argument. The US Supreme Court has recognized that freedom of speech is not absolute. For example, one cannot yell “fire” in a crowded movie theater when there is not fire. It is a well-known legal precedent that speech that causes imminent violence or physical harm is not protected speech. Furthermore, even though it is considered protected under free speech, it is also recognized under the law that pornography is not to be sold to minors. One poll indicates that 50% of men who identify themselves as Christian are addicted to pornography. We already know these types of addictions can lead to the breakdown of the family. In addition, we know what effect divorce has on children. To say that freedom to produce and distribute pornography somehow trumps a child’s right to a stable family life is an absurd argument. Given all the empirical data available, we know children are better off with parents who remain in a stable married environment. As Pope John Paul II stated, “In the family, which is a community of persons, special attention must be devoted to the children by developing a profound esteem for their personal dignity, and a great respect and generous concern for their rights” (Familiaris Consortio, no. 26). States have a real interest in protecting the well-being of the children. This includes saving them from the harm of pornography.

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In a society obsessed with asserting perceived individual “rights” over the common good, it is time to reassess the damage that has been done to the family by divorce and pornography. Again, as Pope John Paul II asserted “Just as the intimate connection between the family and society demands that the family be open to and participate in society and its development, so also it requires that society should never fail in its fundamental task of respecting and fostering the family” (Familiaris Consortio, no. 45). Given what states have done to the family in the name of the individual over the last 40 years, it is little wonder that we have seen such problems within American society. Legislation, such as this, could have the effect of deterring people (or pornographic distributors) from interfering with a marriage if they could be sued for significant amounts of money.

It is time for states to wake up to the reality that the distribution and viewing of pornography and no-fault divorce has had a detrimental effect on society. A destabilized family leads to a destabilized society. The idea that whatever the individual desires trumps the common good has proven to be a failure of epic proportions. It is time that legislators take a serious look at limiting these evils.

Joe Kral has been involved in the pro-life movement since he has been in college.  His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics.  From 1996-2003 he was the Legislative Director for Texas Right to Life.  During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life.  From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives.   In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas.  He currently serves as a voluntary legislative advisor to Texas Alliance for Life, is a member of the Fellowship of Catholic Scholars, taught as an adjunct professor of Theology at the University of St. Thomas, teaches as a Forward Toward Christian Ministry instructor for the Archdiocese of Galveston-Houston, is a member of the Knights of Columbus, and is doing doctoral studies at Harrison Middleton University where he is specializing in the ethical and legal theory of St. Thomas Aquinas. He has been married to his wife, Melissa, since 2004 and they have 2 children together. They attend St. Theresa’s Catholic Church in Sugar Land.
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  • JeffC

    Were you aware that Internet pornography has a similar effect on the brain as crack cocaine? This is an often forgotten factor in these discussions. Sex addiction is a very real and progressive disease (regardless what the mainstream media wants to say–that’s an article in and of itself right there). Sex addiction often moves from pornography and masturbation, to cheating, and even to child abuse and rape in extreme cases.