Adultery and Polygamy
posted by Nate Oman
An article (sorry no link) in this week’s Economist (aka “The Greatest News Magazine in the World”) suggests a link between polygamy and Turkey’s recent efforts to pass a law criminalizing adultery. Back in September, the Turkish parliament debated a proposed law criminalizing adultery. After Kamal Ataturk came to power in the wake of World War I, Turkish law moved in an aggressively secular direction, mainly by importing western-style civil codes. Most strikingly, Turkey essentially adopted the Swiss family law code and among other things criminalized polygamy, which had been allowed under the previous shar’ia-based law. (In theory, under shar’ia a man may have up to four wives provided that he has the means of supporting them and treats all of them equally.) The post-Ataturk laws also criminalized adultery, however this law was struck down by Turkey’s Constitutional Court in 1996 because it treated men and women differently. (As I understand it, the law required proof of a long-term affair in the case of male adultery, but a single act of sexual intercourse was sufficient in a case of female adultery.) The new adultery law was to remedy this infirmity by applying equally to both men and women, but women’s rights groups opposed the law arguing that it would not be applied equally and violated the right to privacy. More importantly, from the point of view of Turkish politics, the law was not popular with the Europeans, who saw it as an attempt to Islamicize Turkish law. Turkey very much wants to become a full member of the EU, so staying in the good graces of the elites in Brussels is very important.
Enter polygamy. Although the Turkish prohibition on polygamy is now about eighty years old, in many areas — particularly in the rural, Kurdish, anti-Turk, south-eastern portion of the country — polygamy is alive and well. More surprisingly, a certain amount of discrete polygamy continues among urban elites, including former ministers in the Turkish cabinet. The Economist suggests that adultery law may have been pushed in part as a way of shoring up the anti-polygamy prohibition. If this is the case, then the Turkish parliament was walking a path previously trod with great enthusiasm by the U.S. Congress.
In the wake of the Civil War, the federal government moved vigorously to stamp out polygamy among Mormons living in the intermountain west. (The story is best told in Sarah Barringer Gordon’s (Penn Law) excellent book The Mormon Question; reviewed by yours truly here.) Congress had criminalized polygamy in 1862, but the problem was that a polygamy prosecution required proof of a marriage, which presented a thorny evidentiary problem: Those who had been at the wedding always refused to talk. Federal law enforcement responded in a couple of ways. First, they prosecuted polygamist men for adultery. Second, they prosecuted polygamist wives for fornication, which was tantamount to charging them with prostitution, as fornication was the charge generally brought against prostitutes. Third, congress created a new crime known as “unlawful cohabitation,” essentially the crime of living together without being legally married.
Unlawful cohabitation in particular created some interesting legal problems. What was required to prove unlawful cohabitation? Lawyers representing Mormon polygamists argued that it required proof of sexual intercourse, which of course could be as difficult to show as a secret marriage ceremony. The government won this battle, although the courts were never entirely precise on what did need to be shown to prove unlawful cohabitation. More creatively, government prosecutors came up with a theory known as segregation, under which a man would be charged with a new count of unlawful cohabitation for each year, month, or even day that he unlawfully cohabitated with a polygamous spouse. This allowed the prosecutors to pile on the legal penalties for polygamy, until the Supreme Court stopped the practice in the case of Ex Parte Snow, 120 U.S. 274 (1887).
In short, America’s (very imperfect) suppression of polygamy required the creation or adaptation of a number of different criminal offenses. In the end, I tend to agree with the women’s rights activists that the operation of adultery laws in Turkey is likely to fall mainly on women. However, the notion that criminalizing adultery could be a tool for suppressing polygamy is not nearly as far fetched as it might at first sound.