From: Valence (valence10@hotmail.com)
Date: Thu Jun 19 2003 - 04:04:59 BST
Take 3 - pt. 3/5
JOHNNY
Though they can't expand laws to include things not
> mentioned in them, can they? Don't they have to say you found a loophole
> and let you go?
RICK
Maybe. Yes, principles of equity generally say that a judge can only narrow
a statute to exclude cases that the legislature didn't mean to include.
However, in reality, it's not really that simple. Judges have wide-ranging
equitable powers that often can be used to expand the statutes anyway (ie. a
legislature passes a law saying that men cannot sleep in the park at night;
on a challenge to law, the judge finds that it violates the Equal Protection
clause of the 14th amendment; he can strike the law down if he'd like; or he
can 'repair' it so that it doesn't violate EP anymore by making it apply to
women as well; he is essentially given the task of deciding whether the
legislature would rather keep the law as repaired, or lose it entirely).
>
> >As for whether 2 women can commit adultery, legally, you really couldn't
be
> >more wrong. Every state has its own definition of what adultery is.
JOHNNY
> I don't suppose you could link to one such state's law, could you? Or do
> you offhand know of which state so I can track it down? I wonder when the
> defintion was changed. Probably pretty recently.
RICK
Here ya go...
NY CLS Dom Rel § 170
§ 170. Action for divorce
An action for divorce may be maintained by a husband or wife to procure a
judgment divorcing the parties and dissolving the marriage on any of the
following grounds:
(4) The commission of an act of adultery, provided that adultery for the
purposes of articles ten, eleven, and eleven-A of this chapter, is hereby
defined as the commission of an act of sexual or deviate sexual intercourse,
voluntarily performed by the defendant, with a person other than the
plaintiff after the marriage of plaintiff and defendant. Deviate sexual
intercourse includes, but not limited to, sexual conduct as defined in
subdivision two of Section 130.00....
§ 130.00. Sex offenses; definitions of terms*
* See Editor's Note to this section.
The following definitions are applicable to this article:
1. "Sexual intercourse" has its ordinary meaning and occurs upon any
penetration, however slight.
2. "Deviate sexual intercourse" means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus,
the mouth and penis, or the mouth and the vulva.
3. "Sexual contact" means any touching of the sexual or other intimate parts
of a person not married to the actor for the purpose of gratifying sexual
desire of either party. It includes the touching of the actor by the victim,
as well as the touching of the victim by the actor, whether directly or
through clothing.
RICK
Moreover, the law is virtually identical in your own Massachusetts (my brief
case law search lead me to thousands of Massachusetts cases in which
homosexual acts formed the grounds for divorce...None of which, by the way,
even remotely questioned the viability of the idea. I couldn't find the
corresponding statute, but it's there, I promise you). As for when the
"change" occurred, those cases in Mass go back well over 100 years so I
would have to say it was a very long time ago. That statute that you found
online was a CRIMINAL statute, which defined 'adultery' only for the
purposes of criminal prosecutions (that statute has been judicially limited
to public acts only). It has very little relevance for the almost
exclusively civil world of divorce law.
JOHNNY
> I bet it is related to obscenity being "I know it when I see it".
RICK
That standard of obscenity has long since been held unconstitutional.
JOHNNY
> Kind of like Ken Starr did... But we didn't prove they had intercourse.
We
> just expected them to tell the truth and the whole truth.
RICK
They got Clinton for perjury.
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