“No, honey, I never committed adultery with that woman, Monica Lewinsky.”
This would be a perfectly accurate statement for Bill Clinton to make in
New Hampshire, according to a recent ruling from the Granite State’s
highest court.

On November 7, the New Hampshire Supreme Court gave its decision in the
divorce case of David G. Blanchflower and his soon-to-be-ex-wife Sian E.
Blanchflower. At issue was whether the divorce would be a no-fault
divorce-Sian’s preference-or a fault-based divorce-which is what David
wants.

In a no-fault divorce, according to New Hampshire law, nobody is blamed
for the bad things that happened in the marriage, and evidence of fault is
irrelevant unless child-custody issues are involved. Where the division of
property is concerned, no-fault divorce tends to disfavor the primary
breadwinner.

In a fault-based divorce, one of the spouses is considered to be the one
to blame for the dissolution of the marriage. The innocent party in a
fault-based divorce can get the lion’s share of the divorce settlement,
provided (s)he can prove that the other party’s bad conduct is what caused
the marriage to break up, and provided (s)he can prove one of the
following: (a) that the guilty party’s behavior “caused substantial . . .
pain and suffering” or (b) that the guilty party’s behavior caused
“substantial economic loss.”

We can see, therefore, that if the primary breadwinner can prove the other
party to be at fault, (s)he has a good chance of getting most of the
marital loot. If the divorce is no-fault, however, then the primary
breadwinner stands to lose out when it comes to dividing up the property
with the ex-spouse.

What are the types of behavior by one spouse that would justify the other
spouse in getting a fault-based divorce? According to New Hampshire law,
these grounds are as follows: “[i]mpotency,” “[a]dultery,” “[e]xtreme
cruelty,” imprisonment for a serious crime, treatment that endangers the
innocent party’s health or sanity, disappearance without trace, habitual
drunkenness, and refusal to cohabit with the innocent spouse.

(See New Hampshire Revised Statutes, 458-7, 458-7-a, 458-16-a)

The Blanchflower case has to do with the definition of the term “adultery”
in this list of reasons for fault-based divorce. David Blanchflower sued
to get a divorce from his wife Sian. He started by asking for a no-fault
divorce, but then he decided to go for a fault-based divorce based on a
claim that Sian had committed adultery. According to David, Sian had a
lesbian relationship with another woman. The New Hampshire Supreme Court
had to decide whether lesbian sex could ever constitute adultery. It
couldn’t, said the court.

As defined by the court, adultery is only committed when a husband has
sexual intercourse with a woman who isn’t his wife, or when a wife has
sexual intercourse with a man who isn’t her husband. This definition means
that homosexual conduct can never be adulterous. But the court rejected
the suggestion that its definition discriminated based on sexual
orientation: “our interpretation of the term ‘adultery’ excludes all
non-coital sex acts, whether between persons of the same or opposite
gender.” Thus, as I have noted above, Bill Clinton didn’t commit adultery
with Monica Lewinsky, if we go by the New Hampshire definition of
adultery.

How did the court justify its curious definition of adultery? It cited one
of its own precedents from way back in 1838. In that nineteenth century
case, a criminal prosecution for adultery, the court had said: “Adultery
is committed whenever there is an intercourse from which spurious issue
may arise . . . .” Thus, sexual acts which don’t pose a risk of producing
children cannot be adulterous. Q. E. D.

Two members of the court, including the Chief Justice, dissented. The
dissent said: “It is hard to comprehend how the legislature could have
intended to exonerate a sexually unfaithful or even promiscuous spouse who
engaged in all manner of sexual intimacy, with members of the opposite
sex, except sexual intercourse, from a charge of adultery. Sexual
infidelity should not be so narrowly proscribed.” In lieu of the majority’
s definition, the dissenters would define adultery as “extramarital
intimate sexual activity with another.”

Responding to the dissenters, the majority justices said that the proposed
alternative definition was too broad and indefinite. “This standard would
permit a hundred different judges and masters to decide just what
individual acts are so sexually intimate as to meet the definition.” In
contrast, the majority modestly claimed, they had adopted a “clear
objective definition of adultery in marital cases.” The dissent said that
their definition was quite workable, citing Justice Potter Stewart’s
famous definition of hard-core pornography: “I know it when I see it.”

The dissent could have added another point. Since they didn’t make the
point, I will do it for them. The majority’s definition of adultery is
just as open to abuse as the minority’s definition. The majority cited a
precedent stating that adultery exists “whenever there is an intercourse
from which spurious issue may arise.” Based on that definition, non-coital
sex was deemed non-adulterous because it couldn’t result in children. But
if the risk of “spurious issue” is the only problem, then presumably, by
using proper birth control, a cheating spouse could engage in
non-adulterous sexual intercourse. Or if the cheating husband has had a
vasectomy, nothing he does could be considered adultery.

Conversely, it is possible, under the court’s definition. for an adulterer
to have “spurious issue” without engaging in sexual intercourse with a
paramour. A cheating husband could have “non-adulterous” sex with his
mistress and put the product of his passion into a bottle, and his
mistress could then fertilize herself with it.

The upshot of this decision is that an unfaithful husband or wife, with
the aid of a clever lawyer, can wiggle out of a charge of adultery and get
a no-fault divorce, even if it was the unfaithfulness which broke up the
marriage. The wronged spouse would be left holding the bag, and in the
judge would be required to divide up the marital assets as if the betrayal
hadn’t happened, allowing the betrayer to make windfall financial gains
from his or her misconduct. Fortunately, many other state high courts have
adopted a more common-sense definition of adultery, and it will hopefully
be these common-sense decisions that will be followed outside New
Hampshire, not the Clintonian definition of New Hampshire’s high court.