The Playboy Philosophy

the twenty-fourth part of a statement in which playboy's editor-publisher spells out--for friends and critics alike--our guiding principles and editorial credo

The Traditional Judaeo-Christian conviction that sex is moral only within the bonds of matrimony was not derived from early Hebrew scripture nor from the teachings of Christ. As we have previously discussed in some detail, an extreme antisexualism developed during the Dark Ages, was codefied by the medieval Church, and enforced by the ecclesiastical courts and eventually by the Church-controlled secular courts as well.

After the Reformation, sexual restrictions became even more severe, with suppressive Puritanism becoming the primary religious-moral influence in both England and Colonial America. Thus, while the U. S. Constitution guarantees religious freedom through the separation of church and state, numerous puritan prohibitions that have no place in our supposedly open, pluralistic society are, nevertheless, firmly established in all of the 50 states.

As a conclusion to our current consideration of the legal aspects of the American Sexual Revolution, in last month's installment of The Playboy Philosophy we proposed an alternate approach to sex legislation that is, we believe, more consistent with the interests and welfare of a secular society. While the Government properly protects the individual from unwelcome acts of sexual aggression, violence, coercion and exploitation, with special consideration given to the protection of children and reasonable prohibitions against public indecency, there remains an area of private sex morality that should not be interfered with by the state--not if the individual citizen and society itself are to be considered free.

The religious concept of sin should not be confused with the secular concept of crime, just as the jurisdictions of minister and magistrate are kept separate in America. Our Government, which derives its just powers from the consent of the governed, should not be empowered to intrude into the private sex conduct of consenting adults--this should remain a matter of religious and ethical determination to be made by the individual alone.

We noted, in the November installment of Philosophy, the extent to which our views on this subject parallel those of many prominent members of both the clergy and the law, and the conclusions reached in the famous Wolfenden Report in England and The American Law Institute's Model Penal Code for sex offenses. Our summation on U. S. sex legislation began last month with a final consideration of fornication and cohabitation, and continues in this issue with our conclusions on adultery.

The Origin of Adultery Laws

In our society, adultery is considered a more serious sin than fornication; this is reflected in our state statutes, which tend to treat adultery as a more serious crime. The legal distinction between adultery and fornication is not a clear or precise one, however, and what is defined as adultery in some states is considered fornication in others.

The difficulty in defining adultery goes back to its religious-legal origins. Adultery is the only sexual act seemingly significant enough to be included in the Ten Commandments, but the "adultery" condemned in the Old Testament was quite different from the meaning we give the word today. The original Hebrew injunction against adultery was not a matter of sex morality--it related to the protection of family property rights, inheritance and lineage. As Reverend William Graham Cole, Chaplain and Assistant Professor of Biblical Literature and Religion at Smith College, Chairman of the Department of Religion at Williams College, and currently President of Lake Forest College, states in his book Sex in Christianity and Psychoanalysis: "There is a stern prohibition against adultery in the Law, but this springs from the concern for the seed, the family line. That this is not antisexual is demonstrated by the glaring absence of any ban on fornication, an omission which embarrassed later Christians of puritanical hue ..." And G. Rattray Taylor writes, in Sex in History: "It must be understood that in this period, just as in Rome and Greece, adultery was a property offense and meant infringing the rights of another man. It did not mean that a man should restrict his attentions to his wife; indeed, when a wife proved barren, she would often give one of her handmaidens to her husband that she might bear children for him. Moreover, as the Bible often reminds us, men were free to maintain mistresses ... in addition to their wives; and on the number of wives a man might have there was no restriction."

Morris Ploscowe, Director of the American Bar Association Commission on Organized Crime, former judge of the New York Magistrates' Court, Adjunct Associate Professor of Law at New York University, comments on the evolution of the legal definition of adultery in Sex and the Law: "The Roman law, which influenced much of our thinking on this question, differentiated between the illicit sexual intercourse of a married man and that of a married woman. A married man might have sexual intercourse with a single woman and not be guilty of adultery or any other crime. A married woman was guilty of adultery whenever she had sexual intercourse with a man who was not her husband, whether that man was married to someone else or was single. In such a case, both the married woman and the paramour were guilty of adultery....

"Many of our modern criminal statutes on adultery are interpreted in the same way, making sexual intercourse with another man's wife adultery and sexual intercourse by a married man with a single woman fornication or no crime at all ..." Contemporary Italy still reflects the early Roman view of adultery, making it a crime punishable by imprisonment for up to two years for a wife to have extramarital intercourse, but no crime for a husband.

Adultery was not generally considered a crime at common law, being traditionally punished by the Church, which--by the Middle Ages--had added the strong antisexual significance that the Sixth Commandment has for us today. The Puritans broadened the prohibition to include men and women alike. Ploscowe writes, "The English ecclesiastical law took an entirely different approach to adultery than the Roman law.... Adultery was defined by the ecclesiastical as 'the inconstancy of married persons, a sin arising out of the marriage relation,' which was equally great whether the offender was male or female..."

The Puritans of the Massachusetts Bay Colony, like their English counterparts, made adultery a crime punishable by death, though that penalty was rarely invoked (juries in adultery trials would acquit the defendants of that crime and find them guilty of lesser immoral conduct, such as "lascivious, gross, and foul actions tending to adultery," "very suspicious act leading to adultery," "very filthy carriage," "being in bed together," etc., for which a lesser penalty was prescribed). In 1694, the death penalty for adultery was abandoned and whipping, public humiliation on the stocks, and the perpetual wearing of the letter "A," sewn "on the upper garments in open view," were substituted. The latter penalty was first used in the Plymouth Colony, where the adultery statute of 1658 called for whipping on two separate occasions, as well as the wearing of the letters "Ad" on the outer garments. Connecticut improved upon this legislation when it provided, in 1672, that adulterers should have the letter "A" branded on their forehead with a hot iron. The more lenient Pennsylvania legislation did not provide for such branding until after a third conviction. Pennsylvania was reportedly the first colony to use imprisonment as a standard punishment for adultery, with its Great Law of 1682 providing that "whoever shall defile the marriage bed shall for the first offense be publicly whipped and suffer imprisonment in the House of Correction for one whole year, and longer if the magistrate see fit." Imprisonment for life was possible for a second offense.

The punishment for adultery was not as severe in other colonies, but the English ecclesiastical definition was widely accepted by the early American courts, and also received statutory sanction in many states. The New York Penal Code reads, for example: "Adultery is the sexual intercourse of two persons, either of whom is married to a third person." Under this statute, both the man and woman are guilty of adultery, even if only one of them (either one) is married. In still another variation, there are some states which hold husbands and wives to the same standard of sexual fidelity, but make a distinction between the guilt of the married and single partners in illicit intercourse; in these states, the married partner (of either sex) is guilty of adultery, while the single partner (also of either sex) is guilty only of fornication or, in states that have no fornication law, of no offense whatever.

Adultery in America Today

But whatever definition is applied, it appears that the combined prohibitions of church and state have been notably unsuccessful in suppressing adultery in America. Alfred Kinsey's statistics on extramarital intercourse cover only a portion of the activity that is legally considered adultery in many states, since the unmarried members of adulterous relationships are recorded as premarital and postmarital intercourse in his two famous volumes, Sexual Behavior in the Human Male and Sexual Behavior in the Human Female.

The extensive research of Dr. Kinsey and his associates indicates that approximately 50 percent of all U. S. husbands have sexual intercourse with women other than their wives at some time while they are married. In the study of American women, 26 percent admitted to having had extramarital intercourse; among women with some college education, the figure is 29 percent. The unusual amount of attempted cover-up and reluctance to answer questions related to extramarital coitus led Kinsey to the conclusion that these should be considered minimum percentages for both sexes.

Very few of the common forms of sexual activity occur more irregularly than extramarital intercourse. This, Kinsey suggests, is primarily because of limited opportunity and the fear of discovery, though religious-moral convictions must also act as a serious deterrent in some cases; in addition, many married persons limit their extramarital relations in order to avoid emotional involvements that might seriously endanger their marriages.

There are a variety of psychological, emotional and physical causes for adultery. We won't attempt to evaluate, in this installment, the moral issues involved, or the effects that extramarital relations may have upon a marriage--though obviously the effect is far more dependent upon the attitudes of the individuals involved than on the sexual activity itself. The only question to be considered at this point is whether the behavior should be the business of the Government, or better left to the determination of the individual members of society.

Contemporary U. S. Adultery Laws

All but five of the 50 states (Arkansas, California, Louisiana, New Mexico and Tennessee) have specific statutes making adultery a crime; the maximum penalties prescribed range from a $10 fine in Maryland to five years in prison in Connecticut, Maine, Oklahoma, South Dakota and Vermont.

As we have indicated, the crime of adultery is not defined the same in every state; to complicate matters further, a number of U. S. adultery statutes have cohabitation clauses in them, just as many fornication statutes do, so that single acts of extramarital sexual intercourse are not prohibited. Only when the activity is continuous, or "open and notorious," does it become illegal.

Legal Wife-Swapping

A dramatic example of the legality of occasional acts of adultery vs. adulterous cohabitation, in those states where adultery laws include a cohabitation requirement or where, as in California, there is a cohabitation statute but no law against simple adultery, appeared in a recent UPI newspaper story from Sacramento, which carried the headline: "Wife Swaps Held Legal by City's Official." The story reads as follows:

Wife-swapping may be a bit unorthodox, but it's perfectly legal as far as the Sacramento district attorney's office is concerned.

"Occasional acts of illicit intercourse do not constitute adulterous cohabitation," said Chief Asst. Dist. Attorney Robert Puglia.

His opinion was occasioned by a police investigation of a 64-member club that engaged in spouse swapping. Puglia explained that adultery is against the law, but only when it is more than a "casual act" between consenting adults. Regular cohabitation must occur before the adultery laws can be invoked.

As for the wife-swapping club, police said it apparently broke up during the investigation. Officers had learned of it through a couple who advertised for new couples seeking "mature fun." The husbands in the group were mostly white-collar executives in their 20s, police said. Single persons and unmarried couples were not admitted. One husband told police that the clubs eliminated the need of going to taverns to strike up acquaintances with strangers of the opposite sex.

This newspaper story illustrates the legal distinction made between occasional acts of fornication and/or adultery and the more sustained activity that is necessary to constitute an offense in some states. It is worth noting, however, that even though the Sacramento spouse swapping was "perfectly legal," the police department conducted an extensive investigation into the matter, and finding no laws had been broken, still felt obliged to make a public report to the press on this supposedly private activity--concluding, with seeming satisfaction: "As for the wife-swapping club, police said it apparently broke up during the investigation."

In ways such as this, society's suppressive sex prejudices are often perpetuated by the state even when applicable laws do not exist for the purpose.*

A Permissive View of Adultery

With the possessive feelings that most U. S. husbands and wives have for each other, and often assume to be virtually synonymous with love, it may be difficult for some of our readers to imagine a normal, happily married couple with such a permissive attitude that they would allow one another to have extramarital intercourse. But such personal concepts of sexual morality are obviously dependent upon the individual's acceptance or rejection of the sexual taboos of the society in which he lives.

It is relatively easy for us to acknowledge that an Eskimo may give his wife to a male friend or guest for the night, without suffering the outrage and indignation that we consider to be the customary emotions of the cuckold, because this activity exists in another culture in a foreign land. It is more difficult for most of us to appreciate the extent to which the sexual attitudes and tastes of others in our society may differ from our own; and to be willing to accept these differences in private behavior as each person's right and privilege in a society intended to be free.

Most Americans think of adultery as secretive, irresponsible and destructive to a marital relationship, but the following statement by a wife about her sexually permissive marriage suggests that this is not necessarily always the case. These comments are from a case history that appears in The Sexually Responsive Woman, an excellent new book by Drs. Phyllis and Eberhard Kronhausen, published recently by Grove Press. The Drs. Kronhausen quote the wife as follows:

"I was hesitant about having extramarital sex as I did not want anything to disturb my relationship with my husband whom I love. But after several years of marriage we came to a decision which would allow us both to have sex with other persons, and since neither of us is the jealous type, this has worked rather well with us.

"I would never dream of having a secret affair behind my husband's back, as I think honesty and trust are the foundations of any good personal relationship and therefore certainly essential for marriage. I think it is important to tell my husband if I have been to bed with someone and with whom.

"Even though I have enjoyed these experiences, I have never been in love with any of the other men in the same way that I am with my husband, but I would never consider going to bed with someone I don't like.... I do not feel guilty about my extramarital affairs, because I would only feel badly if my husband did not know or did not approve....

"I've heard men complain that women expect too much once they go to bed with them, but this can work the other way round too. Most men just don't seem to believe that I might want to go to bed with them only once, but not a second time, or just a few times, but not forever....

"Another problem I have run into with extramarital sex is that the other fellow may insist that my husband must get jealous. It's a hopeless task to try and convince this type of man that my husband is not jealous and that the guy doesn't have to worry about his coming after him with a gun ....

"Could I do without extramarital affairs, if needs be? Certainly; I'm sure I would survive, but I think sex would become more and more monotonous to me. Extramarital affairs seems to keep me younger in spirit and, I think, make me a more affectionate person, as well as a better sex partner: I know, the more I love, the better lover I become. If that were not sufficient reason for my wanting to continue having extramarital affairs when the right opportunities present themselves, I can only add that doing so has enriched my marital sex life as well.

"As far as my husband's extramarital affairs are concerned, I feel that they have the same good effect on his personality and on our marriage. His affairs do not threaten my inner security and I know that mine do not threaten his. We know too well what we have in each other's love."

We're not offering this example of unorthodox marital morality as an endorsement, for we seriously doubt whether most U. S. husbands and wives would be apt to find very much happiness or peace of mind in similar circumstances; we do not hesitate to state, however, that we consider the unusual sexual ethics that exist in this marriage far more mature and moral than the quite common opposite extreme, in which the discovery of adultery demands that an otherwise successful marriage be ended and is sometimes even accepted by both the deceived individual and society at large--as justification for murder. We've included this testimony about an admittedly atypical American marriage to illustrate the extent to which extramarital intercourse can represent different things in different marital relationships, as further evidence that such personal behavior is better left to the individual determination of those involved than to the impersonal dictates of a state statute.

Adultery and Divorce

In those states that do not have a cohabitation clause in their legislative definitions of fornication and adultery, proof of a single act of nonmarital coitus is sufficient for criminal prosecution. As in the case of fornication, however, adultery laws are only occasionally and, necessarily, capriciously enforced. The lack of enforcement is emphasized by the fact that adultery is one of the commonest grounds for divorce in the United States (its popularity in divorce cases is at least partially explained by the fact that it is the only grounds accepted in every state); each year thousands of divorces are granted in the U. S. for adultery (in one recent 12-month period, there were 1700 in New York City alone), but criminal charges are seldom instituted on the same evidence that has already been accepted by the courts as the basis for the granting of divorce decrees.

Judge Ploscowe concludes his own indictment of American adultery laws, in Sex and the Law, with the statement: "Nowhere are the disparities between law in action and law on the books so great as in the control of sex crime."

As in the case of fornication, the usually unenforced adultery statutes are always available to the unscrupulous and spiteful. Most criminal charges of adultery are, in actual fact, lodged by someone--usually a spouse, in-law or other relative--who has a personal grudge or grievance against the defendant. In such a situation, these state statutes can be a handy weapon, since they make a serious crime of conduct not uncommon in the later stages of an unsuccessful marriage.

It should be noted that the frequency with which adultery is officially recorded as the cause of divorce gives a distorted impression of the actual significance of such activity. While illicit sex can be both a cause and an effect of marital disharmony, the limited number of legal grounds for divorce in many states forces a great many couples who wish to end their marriages for other reasons to resort to the charge of adultery, since the real reasons are not legally acceptable.

The State of New York has the most extreme example of such a severe civil code, with adultery the only legal grounds for granting a divorce. To satisfy this unreasonably restrictive requirement, couples regularly perjure themselves, lying under oath about nonexistent adulterous affairs in order to satisfy the letter of the law, if not its spirit. It is not uncommon in such cases to actually invent the necessary evidence by staging a mutually prearranged raid on an apartment or hotel room in order to find the husband or wife in circumstances incriminating enough to satisfy the court that justice has been done when handing down the divorce decree.

A few especially enterprising lawyers specialize in such cases in states where the lack of more legitimate grounds for divorce creates a ready clientele; for a small additional fee, these lawyers may even supply the necessary third party for the bedroom scene--a complete stranger who neither the husband or wife will, in all probability, ever see again. The investigation of a well-organized racket of this kind in New York a few years ago revealed that several of those connected with the group had played the part of the "other woman" or "other man" in dozens of divorce proceedings over a relatively short period of time.

But in most divorces involving a charge of adultery, no such elaborate evidence is required--the uncontested testimony of either spouse, with a confirming witness, is sufficient. New York Judge Ploscowe states, "The fewer the grounds for divorce, the greater the incentive to commit perjury." To which we cannot resist adding our favorite oft-repeated quip about New York divorce: "The Bible says, 'Thou shall not commit adultery'; but New York says, 'You must!' "

Though our subject in this installment of Philosophy is the criminal laws on adultery, we can't leave these related references to divorce without adding a few conclusions on that subject also.

Conclusions on Divorce

The divorce laws of the United States are, in our opinion, a hodgepodge of confusion, hypocrisy and suppression. We urge the establishment of a uniform divorce law for all of the 50 states, permitting the dissolution of a marriage for any of a number of reasons that may be considered due cause (of which adultery might be one), or by carefully considered mutual consent.

Lack of uniformity is a serious problem in all U. S. sex legislation. It means that sex behavior that is perfectly legal in one state may be a serious criminal offense in another. The disparity in the divorce laws throughout the country is responsible for the abuse known as migratory divorce--a discriminatory situation which permits those able to afford it to seek divorce in a state other than their own, where the legislation is more lenient, by establishing temporary residence there. Thus the wealthier resident of New York who desires a divorce can obtain it with relative ease outside the state, but the New York citizen of only average means has no such opportunity--he is forced to comply with the adultery-only edict of his state, if he wants a divorce, or else he does without.

The state-by-state differences in divorce legislation can also produce bizarre cases like this one, which we mentioned in an earlier installment, but which is pertinent enough to deserve repeating. A man and woman were married in Wisconsin. The marriage was unsuccessful and they separated, the wife moving to Minnesota. The husband then obtained an uncontested Wisconsin divorce; however, under Wisconsin law, the divorce would not be final for a year. A short time later, the woman married a second man in Iowa. Under Iowa law this second marriage was valid--the Wisconsin one-year waiting period notwithstanding. The newly married couple then made the mistake of moving back to Wisconsin. They were both arrested, tried and convicted for criminal adultery, because under Wisconsin law the woman was still married to her first husband. (State vs. Grengs, Wisconsin, 1948.)

We won't attempt to enumerate the various reasons that might logically be included in a model divorce law as justification for terminating a marriage. The important point to be made in this regard is that the reasons ought to be related, as much as possible, to the actual causes of divorce, and to the welfare of the individuals involved, rather than to any superficial or secondary considerations.

And, additionally, divorce ought to be granted whenever it is desired on both sides. A serious attempt at reconciliation should be ordered by the court when there are young children involved; but, failing in that, the mutual consent of the spouses is reason enough for concluding a marriage.

No justifiable end is served by making divorces difficult to obtain, or by requiring legal grounds that are frequently unrelated to the actual causes of marital dissatisfaction, or by forcing couples to continue in marriages against their wills--making the bonds of matrimony literally bondage.

Our society makes the institution of marriage easy to enter and difficult to leave, but we have never heard a satisfactory explanation of why this is so. If the aim is, as we assume, to make marriage a more important, responsible and ultimately successful relationship, we certainly applaud the purpose, but must point out that it would be better served by stricter statutes governing marriage than divorce, since the best way of reducing the number of unsuccessful marriages is to prevent them from occurring in the first place. Any significant reduction in teenage marriage, for example, would have a favorable effect on the divorce rate, since the majority of teen marriages end in divorce.

While a strict set of marriage laws would certainly make more sense than the restrictive divorce legislation currently in existence, we favor neither, because we think such personal problems are less likely to be successfully resolved with a universal edict handed down by a legislator than through the decisions of the individuals directly involved.

We would tighten existing marriage laws only in those few states that do not have adequate health provisions requiring a medical examination prior to the issuance of a marriage license (primarily as a check for venereal disease) and that cater to spur-of-the-moment marriages (that usually lead to spur-of-the-moment divorces) by not requiring any reasonable (continued on page 220)Playboy Philosophy(continued from page 87) waiting period for either the license or the ceremony.

In place of restrictive statutes, we suggest an extensive nationwide educational program on sex, marriage and the family; this could be especially valuable in coping with the serious problems of teenage sex, marriage and divorce (almost 13 percent of all 17-year-old females in the U. S. are married; approximately 50 percent of the girls who marry prior to the age of 18 are premaritally pregnant; well over half of all couples who marry before the age of 18 are subsequently divorced).

Some of the opposition to a more permissive divorce code is based on the religious conviction that divorce itself is immoral. But from a secular point of view, the high rate of U. S. divorce is important primarily as a barometer of the increasing number of couples in contemporary society who are unable to find any lasting happiness in marriage. Consequently, a logical concern over divorce ought to concentrate on correcting its underlying causes rather than simply reducing the divorce statistics with restrictive legislation.

Divorce is only a symptom, and you don't cure a disease by treating its symptoms. The successful elimination of only the symptoms can sometimes even be dangerous, creating a false impression that the illness itself has been cured, and occasionally causing other, more serious complications to develop as well.

The marital ills from which our society suffers, and for which we must begin seeking suitable cures, are primarily caused by the serious conflicts in personal identities and values that afflict both sexes in this century, in an ever more complicated, competitive, confusing culture; and that are especially obvious in the breakdown of the traditional marriage and family roles of the male and female, in such relationships as husband and wife, economic provider and homemaker, father and mother, etc.

The problem of divorce, like that of adultery, can be understood only by comprehending the complex and often conflicting emotions and motivations that develop in a marriage relationship. If better answers are to be found for these problems, they will come less from legislatively suppressing the human spirit than from liberating it, through the establishment of more enlightened social and sexual values.

Conclusions on Adultery

The adultery statutes of the United States are historically derived from church law rather than common law--a secular codification of religious dogma--and, as such, they are an unconstitutional abridgment of the First Amendment's guarantee of a separate church and state.

It can be argued that even though the penal prohibitions against adultery are religious in origin, they also serve a legitimate purpose in secular society by punishing behavior that is harmful to the institutions of marriage and family--in which society certainly has a stake. But, as we have indicated, these laws are rarely enforced and the punishment thus applied is random and quite arbitrary, having less than no effect as a deterrent--tending to produce instead a general disrespect for the law, just as national Prohibition did in the 1920s.

Any attempt at more rigid enforcement of these statutes would certainly fail to achieve the desired results. As an editorial on the subject of archaic American sex laws in The University of Chicago Law Review remarks: "If strict enforcement of all state sex laws were decreed for a short time only, pressure for legislative repeal would become irrepressible."

It should be remembered that the extramarital intercourse that is considered criminal adultery in 45 separate states is engaged in, at one time or another, by approximately 50 percent of all married males and 25 percent of all married females in America. This is not an activity that can be effectively suppressed by penal prohibitions. Even in those early Puritan colonies, where the penalty prescribed for adultery was death, extramarital intercourse was commonplace.

Whether America's adultery laws help or actually hurt the situation, extramarital intercourse is generally assumed to be injurious to marriage. It isn't often suggested, by any responsible authority, that adultery may also sometimes be beneficial. But in a recent two-part article on the Kinsey Institute's new book, Sex Offenders, Dr. Paul Gebhard, head of the Institute for Sex Research at Indiana University since Dr. Kinsey's death, told the ladies who read the Ladies' Home Journal:

"Even aside from religious or moral considerations, society certainly has a stake in preventing adultery, for the family is the whole basis of our social structure; and one apparently obvious way to insure that marriages will last is to discourage sexual gratification with anyone except the legal husband or the legal wife. But a closer look shows that this ideal may not always fit the biological truth. A man and wife can be mismated sexually; or they can become sexually unattractive; or years of intimacy can produce the urge for novelty.

"Undoubtedly many marriages are broken up by a husband or a wife who has become sexually dissatisfied. If the law, social custom and moral considerations permitted gratification outside the marriage, doubtless many of these marriages would survive, as they do in the Latin-American and southern European countries, where affairs with a mistress or a lover are condoned ..."

Imagine reading that in the Ladies' Home Journal!

Adultery is clearly a more complex ethical and social problem than fornication, but its very complexity is one of the strongest arguments for making it a matter of private morality to be determined by the individuals involved. It should not be the subject of public scrutiny or attempted suppression by society and the state.

Or, as Dr. Gebhard expressed it in his Journal article: "The entire matter is fraught with nuances of practicality, morality, religious attitudes and the complicated structure of human emotions. It is far too delicate a question to be solved by a law that simply states that the man or woman who commits adultery must go to prison ..."

It is our conclusion that all adultery laws, whether concerned with a single act of coitus or adulterous cohabitation, should be stricken from the statute books and that private sex behavior between consenting adults should be outside the jurisdiction of government.

Revising State Sex Laws

Despite the number of sound arguments for revising state sex statutes such as those on adultery, and the number of important social, scientific, religious and legal voices that have been raised in favor of revising them, progress toward a more rational, liberal sex code has been frustratingly slow. For even those legislators who recognize the need to change this undemocratic area of the law are frequently afraid to take any positive action, because it is never good politics to seem to be in favor of "sin."

A recent Associated Press news story from Lincoln, Nebraska, stated:

A noted criminologist says many of Nebraska's sex statutes are "cruel, outdated and unenforceable."

However, this call for modernization apparently is falling on deaf ears.

Dr. James B. Reinhardt, a University of Nebraska professor of criminology, emeritus, said Nebraska's sex laws are "remnants of middleage thinking that would require formation of a Nazilike police state to enforce."

Although several state senators admit that many of the sex statutes are archaic, they said they wanted no part of any move to update them. As one outstate senator put it: "I'm not going to sponsor any move to liberalize those laws. Not in this state. I've got to worry about getting re-elected."

The American Bar Association has urged all states to review their sex laws, and several states have taken action. But Omaha attorney Harry B. Cohen, president of the Nebraska Bar Association, said he would not call for a review of the laws in Nebraska "unless there's a real clamor for it."

Dr. Reinhardt said several of Nebraska's sex laws were passed with little thought years ago during a period of "furious morality."

"The regulation of private morals except as they directly affect the public good is not the business of law, but that is exactly what some of our laws in Nebraska attempt to do," he said.

"I feel these laws should be updated to harmonize more with modern, sophisticated thinking. As it is now, forms of sexuality forbidden by law are not uncommon in the general public....

"Sex laws become bad laws when they attempt to meddle in the personal affairs of consenting adults who, if they are harming anyone by their actions, are only harming themselves," Dr. Reinhardt said.

The references that this noted criminologist makes to Nebraska's sex laws are equally applicable to those of most of the other 49 states, for despite the newspaper article's statement that "The American Bar Association has urged all states to review their sex laws, and several states have taken action," the only state that has thus far taken any real steps toward modernizing its sex laws is Illinois.

A serious attempt was made to liberalize New York's sex laws earlier this year, as a part of a comprehensive re-examination and revision of that state's criminal code--the first in 84 years. The special State Commission on Revision of the Penal Law and Criminal Code, which worked four years on the recommendations for modernizing New York statutes, proposed that adultery and sexual deviation no longer be considered crimes.

The commission chairman, Assemblyman Richard Bartlett, said the recommendations were based on the principle that such conduct "falls within the area of private morals" and is not a matter for public concern. The New York Post reported: "Bartlett acknowledged that the proposals on adultery and sexual deviation would almost certainly touch off a major controversy." They did.

During three days of public hearings held by the state commission prior to giving its final recommendations to the legislature, religious representatives split sharply in their reactions to the proposal to exempt adultery and sexual deviation from the criminal code, with denunciation from Roman Catholics and praise from Episcopalians.

The Catholic viewpoint was presented by Charles Tobin, who made his statement in behalf of the New York State Catholic Welfare Committee. Mr. Tobin urged "that the offense of adultery be restored to the proposal.

"We know that adultery is a serious threat to the marriage bond, undermines family life and endangers the common good," he asserted.

"We urge that consensual sodomy be continued as a crime in the proposed law," Mr. Tobin said. "Homosexuality is an increasing threat to sound family life in our community. We must take every reasonable step to eradicate it."

The New York Times reported: "Mr. Tobin said his group objected also to the proposed law's language covering abortions and the prohibition of obscene, indecent and immoral publications and exhibitions. He said that the changes would weaken prosecution and urged that the present law be retained on these subjects."

John V. P. Lassoe, Jr., director of Christian Social Relations for the Episcopal Diocese of New York, said the New York Protestant Episcopal Diocese regarded the commission's suggested revision of the New York sex code as "a significant and enlightened advance over existing laws.

"I think that there are several improvements in approach and understanding embodied in the revised article," Mr. Lassoe said. "But probably the most important is the recommendation that deviate sexual acts 'privately and discreetly engaged in between competent and consenting adults' should no longer constitute a crime.

"There is no need to restate here the 'modern sociological and psychiatric principles' that led the commission to suggest this change. Obviously we accept this as part of God's continuing and progressive revelation about man's nature, and it is clear that they have done much to reshape a view once held by religious groups."

A representative for the New York County Bar Association endorsed the proposal that adultery and sexual deviation be stricken from the statute books, and recommended that the age of consent for women in sex cases be lowered from 18 to 16. The Bar Association's recommendations were presented to the commission by H. Richard Uviller, an assistant district attorney in Manhattan. A UPI newspaper report on the Bar Association testimony stated:

"Arguing for the elimination of old laws against extramarital sex, Uviller said that although 'there is a tradition of including adultery in the law, we suggest it is fantasy and unrealistic.' He said laws against adultery and sodomy are unjust and largely unenforceable. The Bar Association said homosexual and deviate acts 'privately and discreetly engaged in between competent and consenting adults' should not be considered criminal."

The New York Bar Association's recommendation to liberalize the state's sex statutes is consistent with the position of the American Bar Association, and the American Law Institute's Model Penal Code.

The Bartlett Commission's proposal for a new New York penal code went to the state legislature with its liberal sex provisions intact; and Assemblyman Bartlett offered persuasive arguments in their favor on the floor of the Assembly. But to no avail.

The religious opposition that had been apparent during the commission's public hearings was even more in evidence in the pressures that were brought to bear on the legislators during debate on the Bartlett bill, and centered almost exclusively on that portion of the contemplated legislation that dealt with sexual offenses.

The New York State Catholic Welfare Committee provided legislators with an unsolicited 18-page mimeographed Memorandum of "comments and criticisms" on the Proposed Penal Code, with numbered paragraphs corresponding to the numbered sections of the code itself, including suggestions for the rejection or major revision of entire statutes, as well as changes "urged" in the phrasing of sentences, down to the addition or deletion of single words. Almost all of the 18 pages were devoted to a rejection of the more permissive approach to sex offenses endorsed by the state commission; the Catholic Memorandum not only argued against adultery and consensual sodomy being eliminated from the criminal code, but also objected to the more liberal legislation recommended in relation to:

The Age of Consent (opposed plan to lower age of consent from 18 to 17, although age suggested by American Law Institute is 10, which is also traditional age of consent under Anglo-American common law, and having sexual relations with anyone under the age of consent is statutory rape, punishable in New York with up to 10 years in prison); "Sexual Misconduct" (objected to new title for activity not being severe enough, preferring previous designations as fourth-degree "rape" and "sodomy," although law only concerned with persons under the age of 21); Prostitution (sterner legislation desired); Indecent Exposure (preferred existing law); Obscenity and Related Offenses (urged "that the whole of the present law be carried over verbatim"); Abortion (requested redefining of several terms to make abortion law more severe, including recommendation that abortion after quickening be considered "manslaughter in the third degree"); and Birth Control (opposed provisions being shifted from category of Penal Law to Public Health Law, and objected to less restrictive prohibition on availability of birth-control devices, because "We support the provisions of ... the Penal Law as they express an appropriate basis upon which devices used for the artificial prevention of conception may be prescribed for medical reasons. The statute is an expression of the public policy of our state, that such devices not be sold or distributed on any other premise. It is significant protection against the wholesale dissemination of such devices, which would be an invitation to immorality, particularly among the young.").

On Consensual Sodomy, the Memorandum stated: "We have urged that the crime of sodomy between consenting adults be retained in the Penal Law of New York. It has been urged that this act, when performed in private, is solely a matter between the two parties and not one of concern to the common weal. We disagree.... Such action would tend to increase homosexual practices in the adult population with a consequent effect upon the whole of society."

The Memorandum's statement on sodomy covered three full pages (far more space than was devoted to any other subject), but completely ignored the fact that the criminal sodomy statute that the state commission wished to repeal prohibited both homosexual and heterosexual "deviation" (which meant almost any sex act other than simple coitus, even when performed between husband and wife). The Memorandum concluded its comment on consensual sodomy with a reference to the crime having been eliminated in the recent revision of the Illinois Code "in spite of objections raised by groups in Illinois [the Illinois Catholic Welfare Committee], ... [and] an early reference by Cardinal Stritch."

The Memorandum's statement on adultery was limited to a single sentence: "We urge that the crime of adultery be continued in the law for many of the same reasons which we have urged above on the subject of consensual sodomy." (Which is rather confusing, since the reasons given for continuing sodomy as a crime all had to do with curtailing homosexuality--an unusual argument to apply to adultery.)

What the Catholic Welfare Committee responsible for this Memorandum would apparently have preferred was the elimination of any serious re-examination and revision of the criminal code, atleast as far as sex was concerned; urging "that the whole of the present law be carried over verbatim," they approved perpetuating the confused and suppressive sex legislation of the past, without regard for the "modern sociological and psychiatric principles" that the state commission had taken into account in its redrafting of the criminal code.

Republican Assemblyman Richard Bartlett tried to save as much of the liberal sex legislation in his Proposed Penal Code as possible, but by the end of May it was apparent that he would not be able to secure the necessary votes in the Assembly to assure passage of the measure on sexual deviation. Acknowledging the necessity of abandoning this portion of the bill because of lack of support, according to a story in The New York Times on Friday, May 28, Assemblyman Bartlett said he believed, however, that adultery would be "excised from the criminal statutes."

During debate on the adultery proposal, Bartlett declared that it was not only hypocritical but also impractical to keep on the books a statute under which "prosecution is rare and conviction rarer.

"It weakens the whole fabric of the law," he said, "to carry on the books a law that is almost never enforced."

For a while the next week, it appeared as though Bartlett's expectation regarding removal of adultery from the criminal code might be justified, for though Republican Assemblyman Julius Volker--a member of the Bartlett Commission--introduced two amendments intended to retain sexual deviation and adultery as criminal offenses, the sodomy amendment passed immediately by a vote of 115 to 16, but the adultery amendment failed to gain the necessary margin for passage on the first try. The Assembly reversed its position on June 8, however, voting to retain adultery as a crime on the state's lawbooks with a remarkable turnabout in attitude on the subject in less than a week, for a final count of 96 to 32. (The original vote on the Volker adultery amendment was 73 to 49, or 3 votes short of the 76 needed to pass legislation in the New York Assembly.)

Feeling Assemblyman Richard Bartlett, chairman of the commission responsible for revising the State Penal Code, might have something personal to add to our recounting of his ill-fated attempt to give New York a more contemporary set of sex laws, we placed a person-to-person call to him in his office in Albany. Mr. Bartlett stated:

"Assemblyman Volker acted primarily at the urging of churchmen who were concerned that this [the commission's proposal that adultery and sexual deviation between consenting adults no longer be considered a criminal offense] would signal state approval of the lowering of our moral standards. The New York Catholic Welfare Committee filed an extremely strong memorandum with all the legislators registering opposition to the repeal of the adultery statutes.

"The two major reasons given for not repealing the adultery laws were: (a) the repeal would encourage promiscuity; and (b) the repeal would indicate a tacit state sanction of promiscuity."

One of Assemblyman Bartlett's arguments on the floor of the Assembly in favor of the proposal to eliminate adultery from the criminal law was, he said, that if it was intended that the law be in the books, then it was obviously intended that the law be enforced. If his fellow-legislators were convinced that the adultery law belonged there, it must therefore follow that the 62 district attorneys in the State of New York should start criminal prosecutions as a follow-up to every divorce decree which is issued by the court. (Since, as previously discussed, adultery is the only grounds for divorce in that state.)

We next called Assemblyman Julius Volker, who had introduced the pair of 11th-hour amendments that had retained adultery and sexual deviation as criminal law in New York. We asked him what the chief pressures were leading up to the proposal and passage of his amendments to the revised Penal Code. Assemblyman Volker replied:

"When it appeared at the hearings on the Penal Code that these crimes--in other words, adultery and homosexuality--were never prosecuted, churchmen were immediately attracted. They were also attracted when the Bartlett bill began to get publicity. It was their stand that by removing these crimes from the catalog, we would be giving tacit approval to this kind of irregular conduct.

"Assemblyman John H. Hughes and I submitted an amendment and asked the legislature to express their opinion on it. Their opinion was that these laws should be retained."

We asked Assemblyman Volker what, in his opinion, were the major arguments that proved most effective in winning endorsement for his amendments from a majority of his fellow legislators. He replied:

"One of our older legislators, for example, said it would be a shame if we gave approval for a man picking up and moving in with a woman next door. Most felt at first that it did not seem logical to retain laws on the books which were never enforced. But then church pressures began mounting, church people called for a hearing, two Catholic monsignors from New York City came up to Albany, and a representative of the Council of Churches in Albany, which is a Protestant organization, had several meetings with the legislators."

Assemblyman Volker's reference to the Council of Churches was the first implication we had received that there might have been Protestant, as well as Roman Catholic, pressures brought to bear on the New York legislators, since all previous reports on Protestant reactions to the contemplated changes in sex legislation had been anything but negative. We contacted the state headquarters of the Council of Churches and were informed that they had, indeed, held several meetings with New York legislators to discuss revision of the Penal Code, but that they had taken no position--either favorable or unfavorable--on the proposed elimination of adultery and sodomy as criminal offenses, and were, in fact, still debating that matter within their own organization.

We asked Assemblyman Volker whether anybody other than church representatives and members of the clergy had lobbied against the elimination of these criminal sex statutes, or whether he would say that church pressures were the leading ones in effecting the passage of his amendments. To which Mr. Volker replied:

"Well, it was both church pressures and the personal feelings of the legislators, which seemed to grow strongly as the hearings progressed. It appeared that the only respectable thing to do was to restore the proper image of the legislature by maintaining these laws in the books."

We then asked him to comment on Assemblyman Bartlett's statement that now that these old laws had been reviewed and a decision made to retain them, would it not follow that they should then be enforced--that all of the civil charges of adultery that were accepted by the courts as grounds for divorce ought properly to be used as the basis for criminal prosecution?

Assemblyman Volker replied that he doubted very much that that would happen: but that for personal reasons, and as a result of the pressures brought to bear on them, the legislators simply felt that these criminal laws should be kept on the books.

A story in The New York Times, dated July 22, had this final word on the redrafting of the New York Penal Code:

"A complete revision of the state's 84-year-old Penal Law, embodying sweeping changes in line with present judicial and social thinking, was approved by Governor Rockefeller today.

"At the same time the Governor signed separate bills to retain adultery and homosexual acts on the lawbooks as crimes. A special Penal Law Commission, which worked four years on the revision, had urged deletion of these acts from the law, contending they should be treated instead as matters of private morality."

Such is the status of enlightened sex legislation, and the separation of church and state, in the U. S. today.

*The Sacramento spouse-swapping investigation began when police followed up on a couple's advertising for others seeking "mature fun"; for a similar example of a husband and wife who found themselves in serious difficulty with the authorities after responding to the same sort of personal ad, placed in the paper as a "plant," see the letter titled "Kansas City Blues" in "The Playboy Forum" in this issue.

In the January installment of "The Playboy Philosophy," Editor-Publisher Hugh M. Hefner continues his summation on U. S. sex laws with some conclusions on prostitution.

See "The Playboy Forum" in this issue for readers' comments--pro and con--on subjects raised in previous installments of this editorial series. Three booklet reprints of "The Playboy Philosophy," including parts 1-7, 8-12 and 13-18, are available at $1 per booklet. Send check or money order to Playboy, 232 E. Ohio Street, Chicago, Illinois 60611.