Last edited: January 27, 2005

Couple’s Query: Is It Adultery If You’re Gay?

Unusual case tests state’s old divorce statute

Concord Monitor, April 21, 2003
Box 1177, Concord, NH 03302-1177
Fax: 603-224-8120

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 relations.

“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 irreconcilable differences.

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 assets.

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 statute.

“The legislature knew exactly what it meant when it enacted the statute and this court should not change that meaning,” Witkus wrote.

“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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