There are other states, however, which hold husbands and wives to the same standards of sexual fidelity, but make distinctions between the guilt of the single partner in illicit intercourse and the married one. In these statutes, the single partner is deemed guilty of fornication and the married one is declared guilty of adultery.
Ploscowe adds this postscript, which helps underscore the earlier Roman definition of adultery as a crime involving married women: "At the end of 1961, it is interesting to note, the High Constitutional Court of Italy, the country's highest tribunal, upheld a provision of the penal code enacted 30 years previously, under which a wife faces up to two years in jail if found guilty of adultery.... Under the law, however, a husband cannot be punished at all for simple adultery."
But whichever definition we apply to the term, the Kinsey studies of our sexual behavior make abundantly clear that all the combined church and state prohibitions have been notably unsuccessful in suppressing adultery in America. Kinsey's statistics on extramarital sexual intercourse include only the incidences of extramarital coitus of married adults; the coital experiences of the partners in these relationships, when the partners are themselves single, appear in the studies as part of the premarital and postmarital calculations, even though this behavior is legally termed adultery by a number of the states. If these additional statistics were added to those that follow, the incidences for adultery would be, of course, much closer to those of other nonmarital intercourse.
Kinsey's research indicates that approximately 50 percent of all married males have intercourse with women other than their wives at some time while they are married. Kinsey and his associates found a higher degree of cover-up and reluctance to supply answers on questions related to extramarital sexual experience than was evidenced in other part of their studies. The 50-percent figure is therefore considered a minimum one and the real figure is probably somewhat higher. Nearly three-quarters (72 percent) of the married males in a study conducted by Terman in 1938 expressed an interest in extramarital relations, and Kinsey's extensive study revealed a "similarly high proportion" who expressed such desires. The gap between the desire for such experience and actual behavior must be viewed as the result of the strong taboos placed upon adultery in our society and on lack of opportunity.
As with premarital sex, educational and social backgrounds play an important role in determining the frequency and form of extramarital sexual activity. Married men of grade- and high-school education tend to have more extramarital coitus in the early years of marriage, but the incidence tapers off sharply with older married men; conversely, males with a college education tend to have fewer extramarital experiences in their first years of marriage, increasing the number of such relations in later years. The increasing incidence of extramarital coitus for married males with a college background can be understood as resulting from a lessening of the greater sexual inhibitions evidenced in early life by upper-level males; Kinsey is unable to offer any similar explanation for the reverse trend in lower-level married males, however.
For most men, at every social level, extramarital intercourse is usually sporadic, occurring on an occasion or two with one female, a few times with the next partner, not happening again for some months or a year or two, but then occurring several times, or every night, for a week or even for a month or more, after which the particular affair is abruptly ended. Kinsey reports, "There are extreme instances of younger males whose orgasms, achieved in extramarital relations, have averaged as many as 18 per week for periods of as long as five years; but these are unusual cases. Lower-level males are the ones who are most likely to have more regularly distributed experience, often with some variety in females. Among males of the college level, extramarital relations are almost always infrequent, often with not more than or two or a very few partners in all of their lives, and usually with a single partner over a period of some time—in some cases for a number of years."
In the study of the U.S. female, 26 percent admitted extramarital intercourse; among women with a college education, the incidence is somewhat higher, amounting to 29 percent. Here again, the cover-up evidenced in this portion of the studies suggests that the true percentages are somewhat higher than those reported.
For both the male and female, there are few types of sexual activity which occur more irregularly than extramarital intercourse. This, as Kinsey points out, is primarily because of limited opportunities and the fear of discovery; in addition, many married persons sharply limit their extramarital relations in order to avoid emotional involvements which might seriously endanger their marriages.
It is interesting to note that Kinsey found nearly half of the women who admitted to extramarital intercourse stated that their husbands either knew about it (40 percent) or suspected it (9 percent).
There are a variety of psychological and emotional, as well as some physical causes for extramarital intercourse in both sexes. We will not attempt, at this point, to evaluate the effect that extramarital sex may have upon a marriage relationship, though obviously the effect is far more dependent upon the attitudes of the person involved than on the sexual activity itself. The only point to be emphasized here is that these problems are personal ones and should remain the private business of the people involved; they are not the proper business of our government.
Nevertheless, 45 of the 50 states (excluding only Arkansas, California, Louisiana, New Mexico and Tennessee) have specific statutes prohibiting adultery. These laws are, in general, more severe than those for fornication, and range from a $10 fine in Maryland to a maximum penalty of $1000 or five years' imprisonment in Maine; Arizona, Idaho, Iowa, Massachusetts, New Hampshire, New Jersey and Wisconsin all have statutes with a maximum prison sentence of three years for conviction of adultery; in Michigan it is four years; in Connecticut, Maine, Oklahoma, South Dakota and Vermont, it is five.
Seventeen states have the same penalty for adultery as they do fornication; Florida has a $300 or 90-day maximum for fornication and a $500 or two-year maximum for adultery, however, and Illinois a $200 and six-month maximum for fornication, with $500 and one year for adultery; in Nebraska the maximum penalty for fornication is $100 and six months, while conviction on a charge of adultery can bring imprisonment up to a year; in Wisconsin fornication may bring $200 and six months, while adultery may be good for $1000 and three years.
Arizona, Delaware, Iowa, Maryland, New York, Oklahoma, Vermont, and Washington have no law against fornication, but do have statutes prohibiting adultery; no state has a law against fornication, but no law for adultery, though several have laws for neither, but prohibit illegal cohabitation (Arkansas, Louisiana, New Mexico); as we commented earlier, only California and Tennessee have no statutes prohibiting any of the three.
Alaska is the only state in which the penalty for fornication (maximum of $500 or two years for both) is greater than for adultery (maximum of $200 or 90 days), presumably because the Alaska fornication law has some of the elements of statutes prohibiting cohabitation. Hawaii is the only state that has different adultery penalties for men and women—$30 to $100 or three to 12 months or both for men; $10 to $30 or one to three months for women. Hawaii is a doubly unique among the states in that the greater penalty applies to the male, whereas society is generally more severe with women for such behavior (as exemplified by the two years' imprisonment for women for adultery in Italy, with no comparable penalty for men).
A study of the statutes of the various states affords us only a portion of the true picture of things, of course, since many laws exist that are not actively enforced. These sex statutes are, in fact, among the least enforced and least enforceable of any in existence in these United States. During the fiscal year of July 1959 through June 1960 in New York, for example, 1700 divorces were granted in New York City on grounds of adultery, but an analysis of the Annual Report of the Police Department for the same period fails to disclose a single arrest for the crime, which is punishable in New York with a fine up to $250 or six months in jail or both. The same evidence of adultery that is legally acceptable for the granting of a divorce is rarely then applied to a criminal prosecution for the activity.
However, some arrests and convictions for fornication and adultery do take place. For the year 1960, for example, the following typical municipal arrests for adultery were reported: Baltimore, two (both dismissed): Dallas, ten; Seattle, 31 (adultery and fornication). In 1959, Boston reported that two males and 17 females had been arrested and committed to a city prison for adultery; ten cases of fornication were similarly dealt with. Philadelphia reported the arrest of three adulterers.
The arbitrary and often capricious manner in which these laws are enforced constitutes a serious problem for the nation. By making the sexual behavior of the majority of adults illegal, these laws breed contempt for all law, and the fact of their being so widely unenforced induces disrespect for all law enforcement, in much the same way that Prohibition did in the Twenties. In addition, their existence permits them to be used by the unscrupulous for intimidation and blackmail.
Dr. Alfred Kinsey states, in Sexual Behavior in the Human Female: "The current sex laws are unenforced and are unenforceable because they are completely out of accord with the realities of human behavior, and because they attempt too much in the way of social control. Such a high proportion of the females and males in our population is involved in sexual activities which are prohibited by law of most of the states in the Union, that it is inconceivable that the present laws could be administered in any fashion that even remotely approached systematic and complete enforcement.... The consequently capricious enforcement which these laws now receive offers an opportunity for maladministration, for police and political graft, and for blackmail which is regularly imposed both by underworld groups and by the police themselves...."
Finally, these sex statutes stand as mute evidence of the extent to which we have failed to live up to the ideal of a free and separate church and state in America.
In the next installment of The Playboy Philosophy, Editor-Publisher Hugh M. Hefner will continue his comparison of U.S. sex laws and behavior with a consideration of the statutes on sodomy, or what is termed "the abominable and detestable crimes against nature," covering all the so-called "perversions," which include almost every form of sexual activity other than coitus—for married and unmarried alike.