Some courts have held that adultery occurs when aspouse enters into "a personal, intimate sexual relationship withany other person, irrespective of the specific sexual acts
--------------------------------------------------------------------------------
Page 4
-4-performed, the marital status, or the gender of the third party."S.B. v. S.J.B., 609 A.2d 124, 127 (N.J.Super.Ch. 1992); see alsoRGM v. DEM, 410 S.E.2d 564, 567 (SC 1991) ("homosexual sexualactivity constitutes adultery"); Owens v. Owens, 274 S.E.2d 484,485-86 (Ga. 1981) ("both extramarital homosexual, as well asheterosexual, relations constitute adultery"); Menge v. Menge, 491So.2d 700, 702 (La.App. 1986) (oral sex can constitute adultery);Patin v. Patin, 371 So.2d 682, 683 (Fla.App. 1979) (suggestingthat extramarital homosexual activity is adultery).However,these decisions do not reflect the law in New Hampshire.RSA645:3 (1996) provides that a person is guilty of adultery "if,being a married person, he engages in sexual intercourse withanother not his spouse or, being unmarried, engages in sexualintercourse with another known by him to be married."(Emphasisadded.)Although this is a criminal statute, in the absence ofany indication the legislature intended a different definition toapply for purposes of divorce law, the court concludes that thisdefinition is controlling under RSA chapter 458."Sexual intercourse" is no where defined in New Hampshirestatutory law.A standard dictionary definition of "sexualintercourse" is "genital contact, esp. the insertion of the penisinto the vagina followed by orgasm; coitus; copulation."TheRandom House Dictionary of the English Language p. 1755 (2d ed.1987).Although this definition would arguably support the viewthat "sexual intercourse" can mean more than simply vaginal
--------------------------------------------------------------------------------
Page 5
-5-intercourse between a man and a woman,1other provisions of NewHampshire law evince a contrary legislative intent. RSA 632-A:1,V (Supp. 2000) defines the term "sexual penetration" in such afashion that it includes "sexual intercourse" as well as variousother sexual acts (i.e., cunnilingus, fellatio, anal intercourse,etc.).If the legislature understood that the term "sexualintercourse" included not only vaginal intercourse between a manand a woman but also all these other forms of sexual penetration,there would have been no need for this definitional section of thelaw to list all the types of sexual activity specified insubsections (b) through (f) of RSA 632-A:1, V.That thelegislature did find it necessary to list these other actssupports the view that the legislature intended the term "sexualintercourse" to cover only vaginal intercourse between a man and awoman.See Appeal of Derry Educ. Assoc., 138 N.H. 69, 71 (1993)("Basic statutory construction requires that all of the words of astatute must be given effect and that the legislature will not bepresumedtohaveusedsuperfluousorredundantwords.").Plaintiff may have a valid point that New Hampshire's adultery lawshould be updated to reflect present day realities concerning themore open expression of homosexual orientation, but this argumentmust be addressed to the legislature, not this court.Second, even assuming arguendo that homosexual "sexual1See also the definition from Webster's New CollegiateDictionary, quoted in Menge, 491 So.2d at 702.
--------------------------------------------------------------------------------
Page 6
-6-penetration" would fit the legal definition of adultery, the courtfinds that the oral sex which the defendant engaged in withanother man over the Labor Day weekend 2000 was not the cause ofthe breakdown of the marriage.See Ebbert v. Ebbert, 123 N.H.252, 254 (1983) (adultery must be primary cause of the breakdownof the marriage for court to grant divorce on this grounds).Itis important at this point to draw a distinction between thedefendant's acknowledged status as a homosexual, on the one hand,and the specific sexual act he committed over Labor Day weekend,on the other.There is no doubt in this court's mind that thehomosexual feelings which the defendant has struggled with formany years was the cause of the breakdown of the marriage.Butunder New Hampshire law, such feelings or emotional yearnings arenot enough to constitute adultery. This would be true even whensuch feelings or yearnings are directed toward members of theopposite sex, and even if -- which is not the case here -- theyare directed toward a specific member of the opposite sex. Thus,the mere fact that a married man may have a strong emotionalattachment to, or romantic interest in, a particular woman otherthan his wife, does not constitute adultery.Although the proofmay be circumstantial,2in order to grant a divorce on the ground2Insofar as plaintiff suggests that Yergeau v. Yergeau,132 N.H. 659 (1990) and Jeanson v. Jeanson, 96 N.H. 308 (1950)stand for the proposition that there need be no "actual proof" ofthe sex act in order to sustain a finding of adultery, the courtdisagrees. What these cases hold is that there need be no directproof of adultery. But while circumstantial evidence of"opportunity and inclination" can be sufficient for the factfinder to infer that the adulterous act did indeed occur, the
--------------------------------------------------------------------------------
Page 7
-7-of adultery it must be shown that the married person actuallyengaged in the act of sexual intercourse with a person other thanhis or her spouse, and that such act or acts was the cause of thebreakdown of the marriage.
