‘A man having sexual relations with another man’s wife is the highest invasion of property and a man cannot receive a higher provocation…’ English Lord Chief Justice John Holt, 1707
Summary: Having examined the Rwandan constitution, Rwandan Positive Law, international law, international jurisprudence and doctrine, this paper highlights potential legal and social inconsistencies in the act of criminalizing adultery, and argues that adultery should be made a civil matter, to be handled outside of courts of law.
- Misogynistic Legislation: In Jewish biblical law: Adultery is defined as sexual intercourse between a man and married woman, not between a woman and a married man. In Islam, Zina (زنا ) Adultery is a violation of the marital contract and one of the major sins condemned by Allah in the Qur’an. However, this provision does not impact men and women equally as men may take additional wives or concubines and thus avoid liability for adultery.’ In Christianity, in contrast, adultery is considered according to some Christian sources to be immoral and a sin for both men and women.4 Nevertheless in the common law in England, a Christian state, adultery involving a married woman and a man other than her husband was considered ‘The’ very serious crime.
- Racial Discrimination: Genocide survivors recall the criminalization of adultery as a device of blackmail, intimidation and harassment targeting Tutsi women, made concubines of high ranking officials, at times against their will, to ensure that the concubines and their children never claimed any rights or protection
- Inconsistency with Rwandan principles of ‘Dialogue and Consensus’, ‘Out of court settlement of disputes’ and ‘Unity and Reconciliation’: Although adultery constitutes a cause of divorce, it must not be a condition for divorce: A marriage union is much more important than the sole sexual activity – albeit one of its key components. Spouses should be given the right to safeguard the other interests accrued from their marriage, especially their children, even when they may fault on their sexual duties inside the official union.
- In the advent of adultery, spouses, within their private arrangement, may so choose to forgive one another, seek couples’ counselling, or indeed proceed in extra-marital affairs without state inference. One spouse however, may decide to bring forth a formal complaint, but such must be treated in a manner that leaves options of either divorce or reconciliation in the hands of the married couple.
- The United Nations’ Position: The UN Working Group on Discrimination against women in law and in practice has issued a call to Governments to repeal laws criminalizing adultery. The Working Group notes that the enforcement of such laws leads to discrimination and violence against women in law and in practice.
Disclaimer: For all technical purposes, this analysis does not condone, in any shape or form, the act of adultery. It is the author’s firm conviction that adultery is morally wrong. However, the advocacy stems from a worry that criminalizing of it is a violation of the constitutional right to privacy and it may have unfair and adverse effects on women and children.
Download full Legal Analysis here: Legal Analysis on Adultery