Couple’s Query: Is It Adultery If You’re Gay?
Unusual case tests state’s old divorce statute
Monitor, April 21, 2003
Box 1177, Concord, NH 03302-1177
By Dan Billin, Valley News
The New Hampshire Supreme Court will soon review a
Lebanon Family Court case that raises the question of whether extramarital
sexual relations between people of the same gender qualify as adultery under
the state’s divorce laws.
At issue is the state’s very old and rather ambiguous
statute governing claims of adultery by people seeking to divorce their
spouses, and whether the law should apply to modern-day situations that may
have scarcely been imagined by the forefathers who wrote it.
In this case, a gay woman from Brownsville, Vt., has
asked the high court to rule that only sexual intercourse between
heterosexuals can constitute adultery—and not sexual relations between
people of the same gender.
That may seem an unusual position for an openly gay
person to take, but Robin Mayer says in her filings with the Supreme Court
that the laws of New Hampshire are biased against homosexuals, and that she
questions whether Lebanon Family Court Justice John Peter Cyr would have
treated her more favorably if she weren’t a homosexual.
“(W)hile homosexuals should be liable for claims of
adultery against them as well as heterosexuals . . . until they have
experienced equality under the law, they are vulnerable to attitudes and
actions both overt and covert by some courts,” Mayer wrote in one of her
filings with the high court.
In the present case, Mayer is trying to use what she
apparently sees as a defect in the law to her advantage: She seeks to
extricate herself from a bitter divorce case on the grounds that New
Hampshire’s antiquated divorce statute doesn’t allow a wife to be accused
of committing adultery with another woman.
Mayer was named as the third party in the divorce
proceedings of David and Sian Blanchflower of Hanover after David Blanchflower
accused his wife of having an “adulterous” relationship with Mayer. Both
Sian Blanchflower and Mayer have objected to the adultery charge on the
grounds that New Hampshire law only recognizes adultery as a heterosexual act.
Mayer appealed to the Supreme Court after Cyr ruled that
the legal definition of adultery should encompass same-gender sexual
“The Lebanon Family Court is attempting to overturn
several centuries of the accepted definition of adultery, which is
heterosexual sexual intercourse,” wrote Mayer, who is representing herself
in the appeal.
Adultery is one of a handful of “faults” for which a
New Hampshire court can grant a divorce, in addition to the no-fault ground of
Any finding that one spouse was at fault in the break-up
of the marriage can disadvantage that spouse in the division of the marital
Just what constitutes adultery is not defined in the
divorce statute, however.
Adultery is a misdemeanor crime under New Hampshire law,
and the criminal statute defines adultery simply as sexual intercourse between
a married person and someone who is not that person’s spouse. The criminal
statute doesn’t define the term “sexual intercourse.”
Three years ago, a Superior Court judge in Hillsborough
County who dealt with the question of whether New Hampshire divorce law
recognizes homosexual adultery said the answer was no. Justice Robert Lynn
ruled that a distinction made in criminal law between sexual intercourse and
other sex acts indicates that the legislature intended the former to mean
“only . . . intercourse between a man and a woman.”
The divorce case in Lynn’s court involved a wife who
accused her husband of committing adultery with another man.
“Plaintiff may have a valid point that New
Hampshire’s adultery law should be updated to reflect present-day realities
concerning the more open expression of homosexual orientation, but this
argument must be addressed in the legislature, not this court,” Lynn wrote.
Cyr reached an opposite conclusion last summer in the
Blanchflower case, keying his ruling to a clause in the divorce statute that
requires marital fidelity.
“This court sees little or no difference as to whether
a breach of the obligation of fidelity occurs when a married person has [a]
sexual relationship with a member of the opposite sex or same sex as the duty
of fidelity has been breached in either instance,” he wrote.
“It would be illogical to assume that the legislature
so intended to define adultery in domestic relation matters so as to make
sexual intercourse between a married person and a member of the opposite sex
who is not his or her spouse a grounds for divorce, but deny the innocent
spouse the right to seek a divorce if the spouse has a sexual relationship
with a person of the same sex.”
Cyr said Lynn’s ruling would mean that if both spouses
cheat—one with a person of the same sex and the other with a person of the
opposite sex—the gay spouse could legally accuse the other of breaking up
the marriage while the heterosexual spouse could not use the defense that the
other was equally at fault.
Other states have resolved similar questions by
redefining adultery to include homosexual sex. The Kansas legislature rewrote
its adultery statute to include sodomy. Courts in Georgia and Florida have
ruled that homosexual sex can be adultery, and a New Jersey court said that
adultery occurs when a spouse engages in “a personal, intimate sexual
relationship with any other person, irrespective of the specific sexual acts
performed, the marital status, or the gender of the third party.”
Sian Blanchflower’s attorney, Lanea Witkus of Newport,
filed a brief opposing a broad interpretation of the New Hampshire state
“The legislature knew exactly what it meant when it
enacted the statute and this court should not change that meaning,” Witkus
“The word ‘adultery’ meant activity that could
result in offspring, an event impossible with same gender couples.”
“Since there has been a long standing antipathy and
avoidance of issues related to homosexuals, the question of what constitutes
same sex adultery has not been addressed by the Legislature. If the
Legislature had wanted to define adultery acts other than heterosexual
intercourse, it would have,” Mayer wrote in her appeal brief.
“In view of the New Hampshire Legislature’s long
standing antipathy towards intimate same-sex relationships, it makes sense
that same sex conduct does not constitute adultery under New Hampshire law.
“Were the legislature to amend the statute to encompass
same sex physical conduct, the Legislature would necessarily have to recognize
the existence of same sex affection, something it has shown a historical
diffidence to do. The Legislature is free to rewrite the statute if it chooses
. . . however, it was the Lebanon Family Court’s obligation to give life to
the legislative intent, not to rewrite the statute,” Mayer wrote.
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