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Profiting from Adultery Is Tasteless (But Shouldn’t Be Illegal)

Posted on March 24 2010 2:20 am
Jenn escaped blue state academia for redder pastures in the South. Follow her on Twitter and read more of her work at
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This piece initially criticized the clarity of David Forsmark’s piece Hawking Adultery. In acknowledgment of his revisions, I offer an updated response below.

David Forsmark’s response to my recent commentary about Maggie Gallagher’s war on homewreckers is dominated by straw man arguments,  distortions, and smears.

David begins by completely misrepresenting my views:

Adultery should be for fun AND profit, according to Jenn. Q. Public.

I defy David to find anywhere I’ve even hinted that adultery “should” take place at all, much less for “fun AND profit.”

Here’s what I asserted: straying spouses, not third parties outside the marriage, are responsible for any harm caused by adultery.  Furthermore, extramarital lovers have the same right to free speech as anyone else. That means that no matter how unseemly we might find it, every one of Tiger Woods’ umpteen mistresses can get paid for writing a book without owing restitution to Elin Woods.

David immediately switches gears to the topic of gay marriage, a subject that was only alluded to in my original piece when I explained that Maggie Gallagher’s career focuses on beating back the threat of same sex marriage.

David uses carefully constructed phrases like “For a few, mostly unmarried, bloggers” and “those who attack her” to avoid the inevitable accusation that he’s putting words in my mouth. But since it’s my commentary he’s criticizing, it’s fair to assume his intention is to characterize my views.  Unfortunately for David, other than correctly intuiting that I support same sex marriage, there is little if anything in that section of his piece that represents my actual views.  Perhaps we can debate the gay marriage issue another day, but for now I’ll stick to the topic at hand.

The remainder of David’s piece is devoted to rebutting one of my responses to Maggie Gallagher, who was kind enough to engage me in the comments of my original piece.  He quotes from what he calls my “poorly argued response”:

1)     [JENN] The “injury” is caused by the spouse who cheats, and that’s who should take responsibility for making amends. Third parties outside the marriage should not be held responsible, and in states where they are, it’s a huge waste of judicial resources.

and responds:

Why the quotes around injury?  Regardless of your position here, there is an injury in both the legal AND emotional sense.  Marriage is a legal contract.  If you set up a business to get other people to break their corporate contracts and come do business with you, you would be subject to be sued over people who you poached.  Maybe that’s why there are no such businesses.

Here’s a case everyone is familiar with.  Think of professional sports.  There are deadlines that must be met before one team can talk to another’s players or coaches.  Talking to them before that date is called “tampering.”  Do marriages deserve less legal protection than an NBA lineup card?

“Why the quotes around injury?”  Hmm, maybe it was to denote that I was literally quoting the word Maggie elected to use? It isn’t the word I would have chosen, and thus, I placed it in quotation marks.

In addition, the sports analogy falls flat.  By participating in the NBA league, teams and their managers agree to refrain from tampering. I know very little about professional sports, but I’d guess they’re  complying with a contractual anti-tampering obligation.  What legal obligation does a mistress (or the male equivalent) have with regard to someone else’s marriage?

David quotes my second point:

2)       [JENN] If a couple managed to save their marriage after an affair and the injured spouse collected damages from the extramarital lover, the spouse who cheated would also benefit financially. How will that deter affairs?

and offers the following analysis:

This one is almost silly.  If the couple reconciles, then the damages would be nearly nil, because the injury would be all on the emotional side, and the legal consequences would be zero.   The reasoning in this point reminds me of the kind of thing you hear from the ACLU, taking the extreme exception in a law and using that to determine its constitutionality.

Huh? So if my husband cheats (sorry, Rob, just an example) and I’m willing to forgive him, there’s no damage, but if David’s wife cheats and he refuses to reconcile, it’s payday?  Do you really want a system in which juries award damages based on our emotional health and capacity for forgiveness?  If so, I’m wasting my words here.

David quotes me a third time:

3)       [JENN] I disagree that the hurt feelings caused by an affair should result in legal restitution. We have a legal remedy in place for those who feel their marriage has sustained permanent damage: divorce.

and responds:

Yes, we do.  However, divorce has enormous financial and legal repercussions, and if a third party is making a profit by causing those repercussions, it’s a reasonable question as to whether they should be liable.  [Jenn] feels the injured party must continue to bear the bulk of the financial injury.

This incredibly immature argument—that “hurt feelings” are the main point of contention—is actually somewhat typical in its focus on the “somebody stole my boyfriend/girlfriend” aspect of the problem.

The uber-libertarians generally ignore the role of children in this equation.  But they are the primary reason for marriage to be formalized and legal.  Divorce has enormous consequences for children, and no society survives without formal responsibility for children.

While they argue that Gallagher’s  real agenda is to attack “gay marriage,” this blind spot only makes sense when one’s real agenda for watering down the marriage contract is to END arguments against “gay marriage.”

This argument makes no sense because Gallagher contended that a new or updated adultery tort would be an alternative to “the nuclear option of exploding her own family through divorce,” not a source of post-divorce income. The only damage done in that case is emotional.

David continues by quoting what he calls a straw man:

JENN: I think we simply differ here on the role of government. I believe that asking the judicial system to punish a person who slept with your spouse is like asking your dad to call the parents of the kid who was mean to you.

Of course, he neglects to place the quote in context. It wasn’t a straw man, but an analogy addressing Maggie’s bewilderment at my suggestion that she “grow up and take the tort lawyer off speed dial.” David may not like my distaste for running to Papa State and Mama Jury to handle personal boo-boos, but it’s not a straw man argument.

David writes:

But Gallagher has come nowhere near that.  She has proposed that people who MAKE A LIVING interfering in someone else’s contract be POTENTIALLY liable for the financial results of their business.

Actually, Maggie’s comment at NewsReal Blog (NRB) blurs the line between penalizing the monetization of adultery and the act of adultery when she answers “no” to the question, “Should there [be] an absolute right to commit adultery without legal consequences?”  In addition, she didn’t just propose “that people who MAKE A LIVING interfering in someone else’s contract be POTENTIALLY liable for the financial results of their business.” Gallagher suggested, for example, that Eliot Spitzer’s call girl Ashley Dupreé should be penalized for parlaying her newfound fame into an advice column by turning over a chunk of her income to Silda Spitzer.  She suggested that Elizabeth Edwards is due a portion of whatever money GQ paid Rielle Hunter, not because the GQ spread damaged Mrs. Edwards financially, but because it seems indecent.

David concludes by admonishing me for making this statement:

JENN: To answer your questions: yes, I believe we should be able to commit adultery and market adultery without legal consequences.

He writes:

Ummm, no, you don’t.  Divorce IS a legal consequence.  Of course, if you are joining those who say government has no role in marriage, that it should not be a legal contract, that would be a consistent statement…

Now, name the successful society which has made it past the Stone Age, in which everyone switches partners at will simply by announcing who they are with and no longer with– for now.  Even those loopycommunes that tried it in the 70s petered out pretty quickly because of a lack of stability.

Societal anarchy and the resulting chaos in parenting responsibility is a high price to pay in order to seem cool and tolerant.

No, divorce is not a legal consequence of adultery. It is a legal remedy that can be applied if a couple is unable or unwilling to reconcile after adultery, domestic abuse, or any number of problems that can damage individual marriages.

His last two paragraphs are, frankly, a bit absurd. I have never advocated switching partners at will or societal anarchy. In fact, I place a high value on marriage and fidelity. But that doesn’t mean that extramarital third parties ought to be penalized financially for writing memoirs about their affairs with married people.  The legal system shouldn’t be policing tastelessness.

Now let me ask you, David, if I defended the right to free speech and bodily autonomy “in order to seem cool and tolerant,” do you think our managing editor David Swindle or editor-in-chief David Horowitz would suffer my contributions to NRB?

Besides, I don’t just seem cool. I am cool.


Follow Jenn Q. Public on Twitter and read more of her work at

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