From: Valence (valence10@hotmail.com)
Date: Thu Jun 19 2003 - 04:04:51 BST
TAKE 3 - pt. 2/5
> >RICK
> >If Hillary set-up the 3-way, Bill and Monica could do whatever they
wanted
> >to and it's not adultery (legally speaking).
JOHNNY
> In my state, as I said, it's clear cut science.
RICK
Law as clear cut science? I'm literally laughing out loud (don't say that
within 100 yards of a law school if you don't want to be very embarrassed).
Here's a quick blurb from a case where the Mass Supreme Court considers the
affirmative defenses of connivance and condonation....
MASS.SUP.CT. (Hayden v. Hayden, 326 Mass. 587)
These are appeals from two decrees entered by a Probate Court in connection
with a libel for divorce. One dismissed the libel; the other ordered the
libellant to pay into court the sum of $3,000 and directed [**138] the
register to pay this sum to the libellee's attorney.
1. The libel, as amended, alleged adultery on the part of the libellee with
a named corespondent. n1 The appeal from the decree dismissing the libel
comes here with a report of the evidence and a report of material facts. The
facts may be summarized as follows: The parties were married in 1934 and for
many years have resided in Bedford. The libellant is "well past middle age"
and the libellee is "somewhat younger." Of this marriage there are two
daughters, the ages of whom at the time of the hearing below were [***2]
twelve and fourteen. In July of 1949 the libellee and the children went to
Provincetown to spend their vacation. The libellant did not accompany them
but the vacation was with his consent and approval and he provided the
necessary funds for it, including the rent for a small apartment [*589] in
which they lived. At this time and for some time prior the relations between
the spouses had not been harmonious. The judge found that while at
Provincetown the libellee committed adultery with the corespondent.This
finding was amply justified by the evidence and is not here challenged. The
issues raised by this appeal are (1) whether the libellee's conduct was
condoned, and (2) whether there was connivance on the part of the libellant.
The judge found that the libellant had condoned his wife's misconduct....
RICK
Condonation and connivance are very well established in Mass law (if you
still doubt this I will send you cases off-forum dating all the way back to
1800s which will verify it for you... beyond a reasonable doubt).
JOHNNY
> Well, judges and juries are free to look at circumstances of the case and
do
> what they think is justice....
RICK
Not really. Juries are free to decide on the facts but they're conclusions
must be based on evidence and they are supposed to apply the law to those
facts as instructed by the judge. Moreover, judges are bound by statute and
precedent.
JOHNNY
...that doesn't change the legal definition of
> adultery, it just sets a precedent for the interpreting of law in specific
> types of cases.
RICK
First, it does change the definition for adultery (it must be uncondoned, or
unconnived). Statutory definitions are often narrowed and expanded by
interpretation. Moreover, only judges are bound by precedent, juries are
not.
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