Can you commit adultery without having sex? Canadian Law Says Yes
Canada is the only country in the world where adultery can be committed without having actual sexual intercourse. Ordinarily, adultery is defined as having voluntary sexual intercourse between a married individual and any person other than his/her spouse. The term “voluntary sexual intercourse” is extremely relevant to constitute adultery. Thus, emotional cheating or lack of consummation would not amount to adultery.
However, in Canada, a landmark judgment in the year 1921 changed everything. The court interpreted the concept of adultery on the basis of reproductive invasion and not merely fornication.
What was Orford v. Orford, 1921 CanLII 471 (ON SC) all about?
In Orford v. Orford , the husband contended that his wife committed adultery as she bore a child outside of their wedlock. The wife, on the other hand, argued that the child was born from artificial insemination and she did not engage in any sexual activity. It was further submitted that the artificial insemination took place twice and consequently, she became pregnant.
The wife testified that she was artificially inseminated in a flat where she laid unconscious and an unnamed physician injected the semen of the donor. Also, the donor was present in the flat along with the physician. The court expressed its doubts regarding the procedure of “artificial insemination” performed on the wife. Nevertheless, it was bound to rule on the issue of whether adultery could take place without sexual intercourse?
What was held by the Court?
The court examined the concept of adultery from point of view of reproduction. It stated that moral turpitude does not form the essence of the offense of adultery. It is the voluntary submission of granting reproductive rights to a third person which constitutes adultery. The court further held that even artificial insemination can be regarded as sexual intercourse as it resulted in reproduction. The court held that “what took place here was the introduction into, her body ) by unusual means of the seed of a man other than her husband. If it were necessary to do so, I would hold that that in itself was “sexual intercourse“.
Thus, even though no actual sexual intercourse existed between the wife and the donor, it resulted in the birth of a child and therefore there was an invasion of reproductive function. The court further opined that had the artificial insemination taken place without the consent of the woman, it would have constituted rape.
Present Position
Courts all over the world have taken a different view, in MacLennan v. MacLennan 1958 Sess. Cas. 105, 1958 Scots L.T.R. 12, the court held that artificial insemination without husband’s consent does not constitute adultery. However in Canada, Orford v. Orford has not been over-ruled and thus the doctrine of reproductive invasion is applicable even today. Therefore, in the event an artificial insemination takes place without the consent of the spouse, it would still constitute adultery in Canada.