Repeal the law on adultery

By Opiyo Oloya SOMETIMES, the law is so outdated that it should be discarded. In Uganda, as in other jurisdictions around the world, the adultery law is one such law that is long overdue for a complete repeal. Last week, for instance, a young man named Martin Ocamfua, 20, an S5 student of Kololo SS was dragged into jail over adultery after being reportedly caught with somebody’s wife. In another case, Makindye Grade One Magistrate, J. E. Katirima, ordered Justin Oryema, a Radio Uganda employee, to pay sh800 after the latter pleaded guilty to eloping with a married woman. The problem is that Uganda’s adultery law is simply an archaic piece of legislation that does not serve justice where two consenting adults decide to have sex. Instead, it criminalizes what is truly a moral issue-who sleeps with whom, is a private moral matter and not a criminal one. Secondly, as Katharine Silbaugh, a professor at Boston University School of Law and the co-author of A Guide to America’s Sex Laws, points out, adultery laws were primarily aimed at women to ensure the legitimacy of children. Thirdly, the application of this law appears to serve men, specifically married men more than it serves women. Somehow, the society accepts and tolerates the man who has a string of “girlfriends” and concubines all over the place. Unfortunately, this charitable view does not extend to the married woman who chooses to exercise her sexual interest by having sex with someone other than her husband. If caught, she risks being exposed before the whole community as “a woman of loose morals”, dragged to court and prosecuted. Were this law really fair to both men and women, hundreds if not thousands of married Uganda men would be prosecuted each year for sleeping around. Instead, as in other jurisdictions such as the US and Canada, Uganda legislators should work to repeal this law from the books or at least render it impotent. In Canada, for example, adultery laws are used largely as grounds for determining whether or not to grant immediate divorce. The husband or the wife who has sexual intercourse with another person while still legally married to his or her spouse, in effect nullifies the marriage. The adultery need not take place when the spouses are still living together to qualify as “adultery”. Even after the spouses have separated, if one party has sexual intercourse with someone else, it is still adultery and the “injured” party can apply for immediate divorce. In fact, some couples applying for divorce have admitted to adultery that never took place, just so the courts can grant a quick divorce. While some states in the US maintain the archaic adultery laws on the books, they are rarely used to convict. For example, it is illegal in the District of Columbia, where adultery is a misdemeanor with a maximum penalty of $500 or 180 days in jail, for a married man to have sex with an unmarried woman-exactly what former President Bill Clinton did with Monica Lewinsky. It’s a misdemeanor as well in Virginia, Maryland and more than 20 other states, and a felony in Idaho, Massachusetts, Michigan, Oklahoma and Wisconsin. But, as the Clinton-Lewinsky case illustrated, the law is so out of date that few judges bother to consider it at all. In the few instances when adultery laws are invoked, the judges do so for other reasons other than to punish infidelity. For example, U.S. Magistrate Judge Carl Horn of the state of North Carolina will not release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805. The judge will often ask the defendant whether he or she is married and, if not, whether he or she is living with someone. If the answer is yes, he will deny bail until the defendant promises to stay away from his or her partner or better, get married. About half decide on the spot to get married. For the most part, US adultery laws are simply ignored or repealed as was the case in Arizona where Governor Jane Hull signed the repeal of the adultery law on May 8, 2001. In defending her action against those who accused her of giving carte-blanche license for immorality, she wrote: “Keeping archaic laws on the books does not promote high moral standards; instead it teaches the lesson that laws are made to be broken. Moral standards are set by families and those they turn to for guidance, such as religious and community leaders. We learn much more from watching their behavior than from any written laws or rules.” Uganda lawmakers need to debate the repeal of the adultery law not only because it cannot be equally enforced for every citizen, but also because it is an outdated law ill-fitted for our modern society.