Adultery and consent

I hestitated to post this, since I don’t know about you guys but I’ve pretty much had it with news about celebrity sexual misconduct. . . but I started writing it and thought I may as well throw it out there.

I’ve mostly been ignoring David Letterman. This is nearly always my stance on adultery: I don’t care. I don’t know why I need to know this information about someone whose television show I don’t even watch. I don’t know why anyone needs to know this except his wife and of course his various sex partners. With the exception of politicians who have the sex practice of creating/supporting laws that would restrict the sex lives of other people while engaging in the unapproved sorts of sex acts him(invariably)self – that’s a good object lesson in hypocrisy – I’m really all for privacy. Let no sex act be known but unto the people involved (and a few good friends who enjoy juicy gossip, in some cases).

But I can’t completely leave it alone for a couple of reasons. Adultery coverage rankles me in part because it presumes that having sex with someone other than your legal partner is de facto a Bad Deed. I don’t care to make this assumption. Monogamy doesn’t suit everyone: some folks just don’t seem to be wired that way; maybe others have just not found their penguin-type mate yet. Regardless, many people do or will desire people other than their primary partner, and my own philosophy is that it’s a good idea to acknowledge and formalize this desire in terms that are comfortable for you. That might well be “don’t ever kiss or sexually touch anyone other than me, ever” – and that’s fine, if it works for both parties – but more often it’s going to be something like “If anything happens, tell me about it” or “don’t ask don’t tell” or, my preference, “please feel free to tell me about the desires you have, and we will talk about ways in which you can satisfy them without hurting me.” Occasionally when adultery gets a lot of media coverage, I get to wondering whether the married couple had a verbal agreement about extramarital behavior, and whether assuming they don’t is hurting cultural discussions about good sex behavior. When Elizabeth Edwards flipflopped on whether she knew about her husband’s affair before the expose (first she said she didn’t, then she said she did), could you imagine her saying to the press “Actually, yes, I knew. I even agreed to it! We’re both busy and away from home a lot, so that was our contract.”** Of course not. The outcry would be huge and weird. Much better to stick to the party lines: he’s a wayward husband, she’s a long-suffering wife. We’re kind of comfortable with those roles; we expect them and sometimes even approve of them (c.f. the wink-nudge laughs Letterman has gotten from studio audiences about his affairs. “Oh, you scoundrel.”)

What matters is not the act but the agreement. Entering a relationship is entering a social contract, and nobody can define the terms except for the two people involved. The social contract aspect raises the issue of consent – and this, to me, is the only reason to take any interest in the extramarital shenanigans of others, the only aspect of adultery that makes it a feminist issue.+ Some questions to consider: If you consent to a sexual relationship with your primary partner with the understanding that neither of you will have sexual contact with anyone else, and one partner does, what does this do to the terms of consent? Does it negate the contract? Undermine the original contract as fraudulent? And what could or should be done in such a case? The stakes are high, not just in terms of emotional safety (which matters, a lot) but in physical safety: the agreement not to take other sex partners is, in part, an agreement to protect each other from bodily harm. In poly or nonmonogamous relationships, the agreement that you may have other partners is (hopefully!) accompanied by full disclosures, disease tests as needed, etc. If you’re going to potentially introduce strange cells to your partner, they need to be fully informed about the possible risk so that they can determine their own “risk tolerance,” to borrow a phrase from that post linked before. And if they are not informed? What do we call this?

I dug around on the internet for a bit, but I’m not really sure what I’m looking for, so maybe someone could help me out: is there a legal term for obtaining consent under false pretenses? I was thinking about the recent case of a twin impersonating his brother to trick his brother’s wife into sex, but this case is being tried as sexual assault because once the wife realized that it was not her husband, she tried to stop him and was unsuccessful. (So sad, so scary.) I’m curious whether there are legal ways to address “consent under false pretenses” as an instance of fraud, or something similar. Obviously, if such things exist, they would be easiest to apply to legally recognized marriages (sigh) but I’ve occasionally wondered what the world would be like if there were way to define and enforce standards of fully informed consent. With casual sex there is always some value of “risk tolerance” as far as disease is concerned, but there’s more… suppose one agrees to protected sex, and one partner makes the protection disappear? If named, could this kind of abuse could be identified and discouraged and eliminated?

Okay. I’m interested in this, but after this discussion plays out I swear++ I’m not going to talk about sex and consent for a month. I’m just sick of it after all this.

*What? Penguins are very romantic animals!
**I’m not assuming that this was the case. Just that it’s a plausible scenario.
+There are multiple layers of consent issues in Letterman’s case, including “what does consent mean when your sex partner is not just your boss but a prominent, influential media figure?” Shakesville discusses this angle; it’s of interest to me but not what I’m discussing here.
++Not really.