SC Governor reappears...after going to Argentina?

[MysticCat]

Originally Posted by KSigkid

Yes, in South Carolina, although one would have a perfectly reasonable argument that a law against adultery is unconstitutional.

Originally Posted by JonoBN41

The law is the law.

And the Constitution is the superior law. As KSigKid says, there is a very good chance that any state statute making adultery unconstitutional would not pass federal constitutional muster.

Besides, if I've got it all straight, the actual acts of adultery occured in Argentina, not in South Carolina, so any SC law would be irrelevant.

Originally Posted by honeychile

Please correct me if I'm wrong (especially since I'm at the world's slowest computer & research on it is a luxury), but wasn't there a case in South Carolina in the past ten years where a wife sued her husband's mistress for adultery?

It was in NC, but it was for alienation of affection, not adultery.

[UGAalum94]

I can't remember ever thinking about this before, but why would adultery being illegal be unconstitutional?

I can understand how investigations of adultery could be but not the statute itself. Marriage has traditionally involved assumptions of fidelity. Marriage is a legal issue. . .

Are crimes for which there's likely to be uneven enforcement all suspect constitutionally?

FYI: I'm not emotionally invested in adultery being a crime; I'm just curious about it.

[MysticCat]

Originally Posted by UGAalum94

I can't remember ever thinking about this before, but why would adultery being illegal be unconstitutional?

Short version: Since Lawrence v Texas, in which the US Supreme Court struck down Texas's law criminalizing sodomy on the grounds that it violated constitutional privacy protections (ie, criminalizing acts of sexual intimacy between consenting adults), there has been speculation that a similar reasoning would invalidate laws criminalizing adultery. Civil laws of alienation of affection and divorce would presumably provide adequate recourse for the "non-offending" spouse without the need for the government to impose criminal punishment.

Originally Posted by KSigkid

As for the media response - I think it's just a symptom of the over-sensationalization (if that's a word, which it probably isn't) of these types of events. Sanford is a prominent politician with some national following, and it's an easy way for the media to pick up readers/viewers/listeners/etc.

i think that may be generally true, but this case is a little different, I think. Sanford basically set up the media response by going AWOL. It was a story before the adultery part came out -- though as has been said, many of us guessed that it was coming. I still think the AWOL aspect is still the real public story, although it's not a juicy.

Originally Posted by deepimpact2

his wife probably would have no interest in suing this woman. Women like the First Lady of SC are satisfied as long as they have their money, power, prestige, and children.

Wow. Stereotype much?

[UGAalum94]

Originally Posted by MysticCat

Short version: Since Lawrence v Texas, in which the US Supreme Court struck down Texas's law criminalizing sodomy on the grounds that it violated constitutional privacy protections (ie, criminalizing acts of sexual intimacy between consenting adults), there has been speculation that a similar reasoning would invalidate laws criminalizing adultery. Civil laws of alienation of affection and divorce would presumably provide adequate recourse for the "non-offending" spouse without the need for the government to impose criminal punishment.

i think that may be generally true, but this case is a little different, I think. Sanford basically set up the media response by going AWOL. It was a story before the adultery part came out -- though as has been said, many of us guessed that it was coming. I still think the AWOL aspect is still the real public story, although it's not a juicy.

The issue seems different to me because of the assumptions involved in legal marriage. In Lawrence, you have only the issue of private sexual behavior. In adultery cases, you have behavior which, likely, violates a legal contract, depending on what we assume that marriage means.

(If adultery has long been a reason to file for divorce, it would seem to violate the idea of marriage. Even if the spouse engaging in the adultery consents, it would seem that the other spouse would have to as well for the issue to boil down to the same thing as Lawrence vs. Texas. )

[KSigkid]

Originally Posted by deepimpact2

With respect to my statement about his wife, my statement was not intended to imply that she may not be hurt or that she isn't affected by the problems in her marriage. My point was that I couldn't likely see her being interested in suing his mistress.

Fair enough, I'd buy that.

Originally Posted by MysticCat

Short version: Since Lawrence v Texas, in which the US Supreme Court struck down Texas's law criminalizing sodomy on the grounds that it violated constitutional privacy protections (ie, criminalizing acts of sexual intimacy between consenting adults), there has been speculation that a similar reasoning would invalidate laws criminalizing adultery. Civil laws of alienation of affection and divorce would presumably provide adequate recourse for the "non-offending" spouse without the need for the government to impose criminal punishment.

Exactly what I was referring to in my previous posts about Constitutionality, and probably shorter than what I would have posted. Thank you.

Originally Posted by UGAalum94

The issue seems different to me because of the assumptions involved in legal marriage. In Lawrence, you have only the issue of private sexual behavior. In adultery cases, you have behavior which, likely, violates a legal contract, depending on what we assume that marriage means.

How would it violate the legal contract of marriage, though?

[UGAalum94]

Originally Posted by KSigkid

How would it violate the legal contract of marriage, though?

Isn't adultery still grounds for divorce in most states, or have we gone entirely no-fault in how we award divorces?

Sexual fidelity, it would seem to me, to be a default part of what you were agreeing to when you got married.

Marriage is weird when you start to think about it. What does it really mean these days other than receiving the state's blessing on your union, compelling your employer to offer whatever benefits it might offer, and filing taxes together?

How romantic.

[MysticCat]

Originally Posted by UGAalum94

The issue seems different to me because of the assumptions involved in legal marriage. In Lawrence, you have only the issue of private sexual behavior. In adultery cases, you have behavior which, likely, violates a legal contract, depending on what we assume that marriage means.

True, but I can't think of any other instance where breach (violation) of a contract is a criminal offense.

That's sort of where the rubber would hit the road: What is the state's legitimate interest in criminalizing conduct that otherwise may be protected by constitutional privacy rights? If a contract analysis is being applied, it is the non-breaching party who has the legitimate interest in seeking redress for the breach, not the government.

As for adultery vs. no-fault, in some states, you can't get alimony under no-fault. Adultery or some other fault will have to be shown if you're looking for anything beyond division of property or child support.

[UGAalum94]

Thanks for your answers, guys!

[JonoBN41]

Originally Posted by MysticCat

And the Constitution is the superior law. As KSigKid says, there is a very good chance that any state statute making adultery unconstitutional would not pass federal constitutional muster.

Besides, if I've got it all straight, the actual acts of adultery occured in Argentina, not in South Carolina, so any SC law would be irrelevant.

This sums up the points I was concerned about quite well, although I think MysticCat meant to say, "making adultery illegal would not pass federal constitutional muster." Maybe it would; maybe it wouldn't. I still don't understand how the prospect that a law might be unconstitutional can be a reason for non-enforcement. In other words, it's still the law until stricken from the books. Right? A constitutional challenge would come later.

On the other point, why would it matter where the adultery took place? Sanford and his wife are residents of South Carolina and fall under SC law. If he married his mistress, would he not be guilty of bigamy? Would it be perfectly fine for him to have wives in Argentina, Georgia, North Carolina, etc., just as long as he doesn't have two wives in SC? I think not. By the same token, it shouldn't matter where the adultery took place.

In fact, it seems to me that bigamy is just as questionable constitutionally as adultery, and yet the government goes after bigamy with a vengeance while waving off adultery as not even worthy of consideration. I'm just wondering why.

[SydneyK]

Originally Posted by JonoBN41

In fact, it seems to me that bigamy is just as questionable constitutionally as adultery, and yet the government goes after bigamy with a vengeance while waving off adultery as not even worthy of consideration. I'm just wondering why.

My guess would be because spouses are granted rights that non-spouses aren't. Similar rights don't apply to adulterers and adulteresses.

[MysticCat]

Originally Posted by JonoBN41

This sums up the points I was concerned about quite well, although I think MysticCat meant to say, "making adultery illegal would not pass federal constitutional muster."

I did indeed. Thanks for catching that.

Maybe it would; maybe it wouldn't. I still don't understand how the prospect that a law might be unconstitutional can be a reason for non-enforcement. In other words, it's still the law until stricken from the books. Right? A constitutional challenge would come later.

As much as anything, it's a matter of resources. District Attorneys (or whatever they are called in SC) have too much on their plates as it is. They're not likely to use their resources prosecuting adultery cases if there is a reasonable likelihood that a conviction would fall as unconstitutional. Plus, if the governor is the only person whose been charged with adultery in as long as anyone can remember, if I were his lawyer I'd argue selective prosecution. DAs have enough to do with serious crimes without messing with it.

On the other point, why would it matter where the adultery took place? Sanford and his wife are residents of South Carolina and fall under SC law. If he married his mistress, would he not be guilty of bigamy? Would it be perfectly fine for him to have wives in Argentina, Georgia, North Carolina, etc., just as long as he doesn't have two wives in SC? I think not. By the same token, it shouldn't matter where the adultery took place.

But it does. What constitutes the crime of adultery is sexual intercourse with someone other than your own spouse or with the spouse of someone else. If the intercourse doesn't happen in South Carolina, then no South Carolina law has been broken. No state can criminalize something that happens outside that state's jurisdiction.

Bigamy would work similarly. If the first marriage was entered into in South Carolina, and the second one in Georgia, then it is Georgia where the crime of bigamy would have been committed. What happens in SC or elsewhere is simply that the second "marriage" is not recognized. That is unless the bigamist comes back to SC and holds himself out as married to spouse number two there. I'm not sure, but that might create a situation where SC would have jurisdiction.