GENERAL INTRODUCTION

A. Background to the Study

Adultery is generally defined as consensual sexual intercourse by a married person with someone other than his or her lawful spouse. Thus, adultery is a special case of fornication, which refers to consensual sexual intercourse between two people not married to each other. The common synonym for adultery is infidelity as well as unfaithfulness or in colloquial speech, “cheating.” Views on the gravity of adultery have varied across cultures and religions. Generally, since most have considered marriage an inviolable if not sacred commitment, adultery has been strictly censured and severely punished. For any society in which monogamy is the norm, adultery is a serious violation on all levels the individuals involved, the spouse and family of the perpetrator, and the larger community for whom the family is the building block and the standard or “school” for interpersonal relationships. The Sexual Revolution of the mid-twentieth century loosened strictures on sexual behavior such that fornication was no longer considered outside the norms of behavior and certainly not criminal if both parties were of age. Nevertheless, adultery still has serious ramifications and is considered sufficient cause for divorce.

From a spiritual perspective, however, the act of adultery causes more than just emotional or legal problems. The violation of trust involved in sexual activity with someone while married to another is deep, and sexual intimacy is not just a physical and emotional experience but a spiritual one. When one has a sexual relationship with another it is not just their “heart” that is given but their soul. While the heart cannot be taken back and mended without difficulty, it is all but impossible to take back the soul. Adultery was known in earlier times by the legalistic term “criminal conversation” (another term, alienation of affection, is used when one spouse deserts the other for a third person). The term originates not from adult, which is from Latin a-dolescere, to grow up, mature, a combination of a, “to,” dolere, “work,” and the processing combound sc), but from the Latin ad-ulterare (to commit adultery, adulterate/falsify, a combination of ad, “at,” and ulter, “above,” “beyond,” “opposite,” meaning “on the other side of the bond of marriage”)[1] Today, although the definition of “adultery” finds various expressions in different legal systems, the common theme is sexual activity between persons when one of both is married to someone else. For example, New York State defines an adulterer as a person who “engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.”[2]

A marriage in which both spouses agree that it is acceptable for the husband or wife to have sexual relationships with other people other than their spouse is a form of non-monogamy. The resulting sexual relationships the husband or wife may have with other people, although could be considered to be adultery in some legal jurisdictions, are not treated as such by the spouses. Man and woman undergoing public exposure for adultery in Japan, around 1860

Historically, adultery has been subject to severe punishments including the death penalty and has been grounds for divorce under fault-based divorce laws. In some places the death penalty for adultery has been carried out by stoning.[3] For example, the influential Code of Hammurabi contains a section on adultery. It mirrors the customs of earlier societies in bringing harsh penalties upon those found guilty of adultery. The punishment prescribed in Hammurabi’s Code was death by drowning or burning for both the unfaithful spouse and the external seducer. The pair could be spared if the wronged spouse pardoned the adulterer, but even still the king had to intervene to spare the lovers’ lives. In some cultures, adultery was defined as a crime only when a wife had sexual relations with a man who was not her husband; a husband could be unfaithful to his wife without it being considered adultery

In some cultures, adultery was defined as a crime only when a wife had sexual relations with a man who was not her husband; a husband could be unfaithful to his wife without it being considered adultery. For example, in the Graeco-Roman world we find stringent laws against adultery, yet almost throughout they discriminate against the wife. The ancient idea that the wife was the property of the husband is still operative. The lending of wives was, as Plutarch tells us, encouraged also by Lycurgus.[4] There was, therefore, no such thing as the crime of adultery on the part of a husband towards his wife. The recognized license of the Greek husband may be seen in the following passage of the Oration against Neaera, the author of which is uncertain though it has been attributed to Demosthenes

We keep mistresses for our pleasures, concubines for constant attendance, and wives to bear us legitimate children, and to be our faithful housekeepers. Yet, because of the wrong done to the husband only, the Athenian lawgiver Solon, allowed any man to kill an adulterer whom he had taken in the act.[5] Later on in Roman history, as William Lecky has shown, the idea that the husband owed a fidelity like that demanded of the wife must have gained ground at least in theory. This Lecky gathers from the legal maxim of Ulpian: “It seems most unfair for a man to require from a wife the chastity he does not himself practice.[6]“

In the original Napoleonic Code, a man could ask to be divorced from his wife if she committed adultery, but the adultery of the husband was not a sufficient motive unless he had kept his concubine in the family home. In contemporary times in the United States laws vary from state to state. For example, in Pennsylvania, adultery is technically punishable by two years of imprisonment or 18 months of treatment for insanity.[7] That being said, such statutes are typically considered blue laws, and are rarely, if ever, enforced. In the U.S. Military, adultery is a court-martialable offense only if it was “to the prejudice of good order and discipline” or “of a nature to bring discredit upon the armed forces.”[8] This has been applied to cases where both partners were members of the military, particularly where one is in command of the other or one partner and the other’s spouse. The enforceability of criminal sanctions for adultery is very questionable in light of Supreme Court decisions since 1965 relating to privacy and sexual intimacy, and particularly in light of Lawrence v. Texas, which apparently recognized a broad constitutional right of sexual intimacy for consenting adults.

Among the world religions, adultery and fornication are generally considered major sins: No other sin has such a baneful effect on the spiritual life. Because it is committed in secret, by mutual consent, and often without fear of the law, adultery is especially a sin against God and against the goal of life. Modern secular societies can do little to inhibit adultery and sexual promiscuity. Only the norms of morality which are founded on religion can effectively curb this sin.¹⁰

In Judaism, adultery was forbidden in the seventh commandment of the Ten Commandments, but this did not apply to a married man having relations with an unmarried woman. Only a married woman engaging in sexual intercourse with another man counted as adultery, in which case both the woman and the man were considered guilty.[9] In the Mosaic Law, as in the old Roman law, adultery meant only the carnal intercourse of a wife with a man who was not her lawful husband. The intercourse of a married man with a single woman was not accounted adultery, but fornication. The penal statute on the subject, in Leviticus, 20:10, makes this clear: “If any man commit adultery with the wife of another and defile his neighbor’s wife let them be put to death both the adulterer and the adulteress[10]“. This was quite in keeping with the prevailing practice of polygyny among the Israelites.              

In halakha (Jewish Law) the penalty for adultery is stoning for both the man and the woman, but this is only enacted when there are two independent witnesses who warned the sinners prior to the crime being committed. Hence this is rarely carried out. However a man is not allowed to continue living with a wife who cheated on him, and is obliged to give her a “get” or bill of divorce written by a sofer or scribe. Throughout the Old Testament, adultery is forbidden in the Ten Commandments, and punishable by death. In the New Testament, Jesus preached that adultery was a sin but did not enforce the punishment, reminding the people that they had all sinned[11].Some Pharisees brought Jesus a woman accused of committing adultery. After reminding Jesus that her punishment should be stoning, the Pharisees asked Jesus what should be done. Jesus responded, “If any one of you is without sin, let him be the first to throw a stone at her.[12] Jesus then forgave the woman and told her not to commit adultery.

Saint Paul put men and women on the same footing with regard to marital rights[13]. This contradicted the traditional notion that relations of a married man with an unmarried woman were not adultery. This parity between husband and wife was insisted on by early Christian writers such as Lactantius, who declared: For he is equally an adulterer in the sight of God and impure, who, having thrown off the yoke, and wantons in strange pleasure either with a free woman or a slave. But as a woman is bound by the bonds of chastity not to desire any other man, so let the husband be bound by the same law, since God has joined together the husband and the wife in the union of one body[14].

In the sixteenth century, the Catechism of the Council of Trent defined adultery as follows: To begin with the prohibitory part (of the Commandment), If a married man has intercourse with an unmarried woman, he violates the integrity of his marriage bed; and if an unmarried man has intercourse with a married woman, he defiles the sanctity of the marriage bed of another[15] In the Qur’an, sexual activity before marriage is strictly prohibited. Islam stresses that sexual relations should be restricted to the institution of marriage in order for the creation of the family; and secondly, as a means to protect the family, certain relations should be considered prohibited outside of marriage. Premarital and extramarital sex (adultery) are both included in the Arabic word Zina. Belonging primarily to the same category of crimes, entailing the same social implications, and having the same effects on the spiritual personality of a human being, both, in principle, have been given the same status by the Qur’an. Zina is considered a great sin in Islam, whether it is before marriage or after marriage. In addition to the punishments rendered before death, sinners can expect to be punished severely after death, unless purged of their sins by a punishment according to Shari’a law.

In the Buddhist tradition, under the Five Precepts and the Eightfold Path, one should neither be attached to nor crave sensual pleasure. The third of the Five Precepts is “To refrain from sexual misconduct.” For most Buddhist laypeople, sex outside of marriage is not “sexual misconduct,” especially when compared to, say, adultery or any sexual activity which can bring suffering to another human being. Each may need to consider whether, for them, sexual contact is a distraction or means of avoidance of their own spiritual practice or development. To provide a complete focus onto spiritual practice, fully ordained Buddhist monks may, depending on the tradition, be bound by hundreds of further detailed rules or vows that may include a ban on sexual relations. Vajrayana or Tantric Buddhism, on the other hand, teaches that sexual intercourse can be actively used to approach higher spiritual development.

The theme of adultery features in a wide range of literature through the ages. As marriage and family are often regarded as basis of society a story of adultery often shows the conflict between social pressure and individual struggle for happiness. In the Bible, incidents of adultery are present almost from the start. The story of Abraham contains several incidents and serves as warnings or stories of sin and forgiveness. Abraham attempts to continue his blood line through his wife’s maidservant, with consequences that continue through history. Jacob’s family life is complicated with similar incidents. Shakespeare wrote three plays in which the perception of adultery plays a significant part. In both Othello and The Winter’s Tale it is the (false) belief by the central character that his wife is unfaithful that brings about his downfall. In “The Merry Wives of Windsor,” an adulterous plot by Falstaff prompts elaborate and repeated revenge by the wronged wives; the comedy of the play hides a deeper anxiety about the infidelity of women[16].

            Adultery is a crime in Taiwan[17] and the Philippines[18]. In the Philippines, the law differentiates based on the gender of the spouse. A wife can be charged with adultery, while a husband can only be charged with the related crime of concubinage, which is more loosely defined (it requires either keeping the mistress in the family home, or cohabiting with her, or having sexual relations under scandalous circumstances)[19]. There are currently proposals to decriminalize adultery in the Philippines[20].

Adultery was a crime in Japan until 1947[21] and until 2015 in South Korea[22]. In 2015, South Korea’s Constitutional Court overturned the country’s law against adultery. Previously, adultery was criminalized in 1953, and violators were subject to two years in prison, with the aim of protecting women from divorce. The law was overturned because the court found that adultery is a private matter which the state should not intervene in[23]. Adultery is not anymore a crime in People’s Republic of China, but is a ground for divorce[24].

In Pakistan, adultery is a crime.[25]. The Ordinance sets a maximum penalty of death. The Ordinance has been particularly controversial because it requires a woman making an accusation of rape to provide extremely strong evidence to avoid being charged with adultery herself. A conviction for rape is only possible with evidence from no fewer than four witnesses. In recent years high-profile rape cases in Pakistan have given the Ordinance more exposure than similar laws in other countries[26]. Similar laws exist in some other Muslim countries, such as Saudi Arabia and Brunei.

B.STATEMENT OF THE PROBLEM

Adultery in former west Cameroon and Cameroon in general constitutes a challenge which is caused by legal and institutional weaknesses. In the meantime, the law on adultery in former west Cameroon were not adequately implemented primarily due to insufficient resources and inadequate political will.   

There has been recurrent conflict between the liberty of the individual and the security of the society. It is well reflected in the area of sexual behavior as it becomes difficult to reconcile competing claims of the liberty of the individual (sexual liberty) and the security of the society (punish ability of abnormal sexual behavior) which so far have defied final solution Religious prohibitions of adultery, traditionalist cultural practices and legal history reveal the discriminatory nature of the concept of adultery under most traditions. In Jewish biblical law, adultery is defined as sexual intercourse between a man and married woman, not between a woman and a married man[27]. Furthermore the penalty is directed against the married woman and not against her co-respondent. In Islam, Zina زنا is an Arabic term for illegal intercourse; premarital or extramarital, by a person (whether man or woman) with someone to whom they are not married. Adultery is a violation of the marital contract and one of the major sins condemned by Allah in the Qur’an[28] 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 Native American cultures, severe penalties could be imposed on an adulterous wife by her husband. In many instances she was made to endure a bodily mutilation which would, in the mind of the aggrieved husband, prevent her from ever being a temptation to other men. Among the Aztecs, wives caught in adultery were occasionally impaled, although the more usual punishment was to be stoned to death[29]. The Laws of Manu of ancient India said: “though destitute of virtue or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly worshiped as a god by a faithful wife”; on the other, hand, “if a wife, proud of the greatness of her relatives or [her own] excellence, violates the duty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many[30].  In Christianity, in contrast, adultery is considered according to some Christian sources to be immoral and a sin for both men and women[31]. Nevertheless under common law in England, a Christian state, adultery involving a married woman and a man other than her husband was considered a very serious crime. In 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man’s wife was “the highest invasion of property” and claimed, in regard to the aggrieved husband, that “a man cannot receive a higher provocation”.

    In former west Cameroon, adultery was face with a lot of challenges primarily due to; the inappropriate application of law, importation of English law, received Nigeria law[32], conflict in jurisdiction and irregular customary laws practices

[1] (1950), Longman Dictionary of Latin. Berlin: Longma..

[2] Minnes 130.00 Sex offenses; definitions of terms New York State Sexual Statutes, The ‘Lectric Law Library. Last accessed on january 6, 2020.

[3] Anger over adultery stoning case CNN, February 23, 2004. Last accessed on 21 january, 2020.

[4] Plutarch, “Lycurgus” XXIX, Plutarch Lives, I, Theseus and Romulus. Lycurgus and Numa. Solon and Publicola (Loeb Classical Library, 1914.

[5] Ibid.

[6] William L. (2005), “Codex Justin., Digest, XLVIII, 5-13” History of European Morals (Ann Arbor: University of Michigan.

[7] Ronald H., “Medicine and the Crimination of Sin: “Self-Abuse” in 19th Century” America. 2, 3 Medicine and the Crimination of Sin: Self-Abuse Last accessed on the 23 of January 2020.

[8] Rod P.,( 2018) “ Adultery in the Military US Military Careers”..Last accessed on the 21 of january 2020.

[9] State of New Jersey v. Saunders, 381 A.2d 333 (N.J. 1977), Martin v. Ziherl 607 S.E.2d 367 (Va. 2005).

[10] Deuteronomy 22:22.Bible. Last accessed on the 18 of February 2020.

[11] John 8:1-11. Bible. Last accessed on the 18 0f February 2020.

[12] John 8:7 BibleHub.Last accessed on the 9 of February, 2020.

[13] 1 Corinthians 7:3 BibleHub.Last accessed on the 9 of February, 2020.

[14]  Epitome of the Divine Institutes, chapter 56 Christian Classics Ethereal Library.Last accessed on the 8 of February, 2020.

[15] The Catechism of Trent. Nazareth Resource Library. Last accessed on the 9 of February, 2020.

[16] In The Country Wife by William Wycherley, the morals of English Restoration satirized. The object of the hero is to seduce as many married ladies as possible, while blinding their husbands to what is going on society are by pretending to be impotent. Other acclaimed authors who have featured adultery in their novels include F. Scott Fitzgerald in his work, The Great Gatsby, Nathaniel Hawthorne in The Scarlet Letter, and John Irving in The World According to Garp.   

[17] Criminal Code of the Republic of China, Article 239 .Last accessed on the 20 of January 2020.

[18] Revised Penal Code of the Philippines

[19] “A brief discussion on Infidelity, Concubinage, Adultery and Bigamy”. Philippine e-Legal Forum. Archived from the original on 21 October 2014. Last accessed on 12 of January 2020.

[20]Gabriela revives proposal to decriminalize adultery. GMA News Online.

[21] Analysis of South Koreas Adultery Law – Law Teacher. lawteacher.net. Archived from the original on 12 August 2014. Last accessed on the 21 of January 2020.

[22] South Korean court decriminalises adultery  BBC News. 26 February 2015.

[23]“South Korean court decriminalises adultery“. BBC News. 26 February 2015, Greg Botelho; K.J. Kwon, CNN (26 February 2015). “Court: Adultery now not a crime in South Korea – CNN.com”. CNN.. ABC News. 26 February 2015.,. The New York Times. 1 April 2015. Retrieved 7 April 2015.

[24] Marriage Law of the People’s Republic of China, Article 32. Last accessed on the 23 of January 2020.

[25] under the Hudood Ordinance, promulgated in 1979

[26] Hudood laws open to change in Pakistan, July 2005.

[27] And the man that committetd adultery with another man’s wife, even he that committed adultery with his
neighbour’s wife, the adulterer and the adulteress shall surely be put to death.” (Lev. 20:10).

[28]  Qur’anic verses prohibiting adultery include:
“Do not go near to adultery. Surely it is a shameful deed and evil, opening roads (to other
evils).”[Quran 17:32]”Say, ‘Verily, my Lord has prohibited the shameful deeds, be it open or secret, sins
and trespasses against the truth and reason.”‘[Quran 7:33].

[29] Schoolcraft, Historical and Statistical Information Respecting the History, Condition and Prospects of the Indian
Tribes of the United States, I, 236; V, 683, 684, 686; H.H. Bancroft, The Native Races of the Pacific States of North
America, I, 514; ABA aug Journal 1969, p

[30] Laws of Manu, V, 154; VIII, 371.

[31] 1 Corinthians 6:9–10.

[32] See the British Cameroon order in council No. 1621 of June which ordered the fusion of British Cameroon to Eastern Nigeria.