Saturday, December 11, 2004

Wasting away again in Aporia-ville

A question has been rolling around in my head for a few weeks, and I still don't have a good enough answer to it. Maybe some reader would be kind enough to set my thinking straight?

The question is this: why is embezzlement an imprisonable crime, but adultery is not?

It might sound strange at first, but here's my thinking: adultery is a breaking of faith between two people. One person (at least) acts faithlessly to vows which they have made publicly, generally resulting serious injury of the other partner.

Embezzlement -- secretly taking (say) money from a firm for one's own use -- is also a way of acting faithlessly, in this case to one's employment contract. And it is a way of breaking faith between two people, since a corporation is considered a "person" for purposes of liability, etc.

But one action is illegal and the other (as far as I know, I'm certainly not a legal scholar) is not. (Side note: I will be exploring this on the basis of the laws of the nation-state in America: the laws of other nations might differ, and we have a rather different view in the church.)

It might be objected that one is an issue between two people (in the "privacy of their home") and one is a much larger matter (in the "public realm of business"). But this seems a specious distinction. This specific synthesis of "private" and "public" realms arose in the industrial revolution. It is historically particular, and not "obvious" or "natural". Feminists helpfully remind us that this sort of division of the world made issues such as domestic abuse or slavery "private". It has also had a corrosive effect on the church as Christian faith has been relegated to "personal preference", one's "private decision", and has been further marginalized to "a person's relationship with God" or, worse yet, one's "spirituality". This distinction between private and public hides from us the public, political nature of much that is allegedly "private", it can be a willful blindness.

But say that we grant that adultery is an issue to be resolved between two people, it is not a matter for law courts -- fine. If we grant that, then it seems that the same must be said for embezzlement, for it is also a matter between two people (the alleged embezzler and the "corporate person"). So if I were to embezzle a kettle of fish from Bob's Bait Shop, why should this not simply be resolved between me and a representative of Bob's Shop? To say that this is public when it is manifestly an issue between two people seems arbitrary.

Perhaps it might be objected that we cannot allow embezzling to go unpunished, because to let it go unpunished would be to encourage the practice, and punishment is properly the task of the nation-state, not an individual. (Of course, this fails because demotions in the company or termination would count as punishment, too, but let's grant the point for now.) If this were true, then the same could certainly be argued for adultery as well. Even if we find ourselves squeamish about "enforcing fidelity" between two people with a covenant (strange we don't feel similarly squeamish about "enforcing honesty" between two people with a contract), we might cogently argue that unchecked infidelity in one area of life might lead to infidelity in another. So, we should discourage adultery because it might to embezzlement!

In the end, I don't see how a strong distinction can be made, unless embezzlement is defined as something other than "breaking faith". (And it seems straightforward that stealing is a kind of breaking faith.) It might also be argued that some kinds of breaking faith are socially tolerable and others not, but again, I don't see how such a distinction can be drawn.

I raise the issue not because I think we should de-criminalize embezzlement. I do think we might re-think our view of adultery, though. In any event, the private-public distinction needs serious re-thinking. Mostly, it is an aporia which arose in my mind that I could not resolve, and it gave rise to a strong suspicion about America, if not the West generally:

We take money more seriously than relationships.

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Blogger magicalsprite said...

I find this a very interesting post and practically impossible for me not to reply to. I personally think that you've stumbled upon two completely separate issues that don't belong together at all. One is just a more specific description of stealing. The other is a description of a type of sex but is that how's it is viewed?

Embezzlement, while being defined as taking something for one's own use in a break of trust, really comes down to the fact that you are stealing from someone. You are taking something which belongs to someone else without receiving any permission. Stealing is a crime. While "break of trust" is part of the definition of embezzlement, I believe that the crime is taking something which is owned by someone else and for your own personal gain. The break of trust is a further definition of the type of stealing that has been done. In other words, embezzlement further categorizes the type of stealing as an "internal" or "partnership" stealing as opposed to robbery or other types of stealing.

Adultery falls into a completely different area. Adultery is defined as having sexual intercourse with someone other than your lawful spouse. You immediately have three people involved in an adultery situation. The married person committing adultery, the spouse and the lover. First, I think you have to look at what marriage is in order to delve deeper into this issue. Looking up marriage in the dictionary will give you several different definitions. I think in this world today, we all have our interpretations of what marriage is and we all subscribe to our own beliefs. Many hold that it is a union and promise set before god. I will leave that description to someone far better than me to talk about. My belief is that marriage is a choice that two people make to bring their lives together and share with one another. A "couple" may choose to have this union acknowledged by law, religion or simply by one another. This union is based on a relationship. It's based on an understanding that two people have that they choose to share their lives with one another and to grow together with one another.

Adultery, again, is defined as having sexual intercourse with another beside your spouse. First, who legally deemed that in order to have a marriage one must be sexually involved only with ones spouse? Is sex the only thing that marriage is based on? We are married because we promise to have sex only with one another? No, we are married because we promise to be faithful to one another, to support one another, to love one another and to grow with one another. Sex is just one part of the whole. Is it possible to have unemotional sex with someone and still be true to your partner? I absolutely believe that it is. While sex can be a very emotional experience, it can also be an extremely animalistic and carnal thing with no emotions involved. Is having sex between two consenting adults a crime? No, it is not. Should adultery be a crime given it's definition, no it should not be.

Most people use adultery to explain something much more emotional. When a spouse becomes emotionally attached to someone else so that it affects his or her marriage to a different person, that is what most people think of when talking of adultery. It's having a "relationship" with someone other than one's spouse that seems to be what people think of as the crime. When we speak of a relationship, we are talking more about emotions and emotional morals.

While embezzlement is taking from another person or entity in a break of trust and it involves only two people or entities, adultery is a situation involving three individuals. Of these three, the two committing adultery are consenting to do so. Two consenting adults having sexual relations is not a crime. Some might say that the crime is what is being done to the unknowing spouse. Well, what is being done to the unknowing spouse? The harm that can be done to the spouse is emotional harm. They are not being physically hurt in any way. Therefore, where then is the crime? What crime is there in this country that one can be charged with that is purely an emotional crime against one's victim with no physical injuries? Why should someone be imprisoned because of causing emotional harm?

Embezzlement has the potential to cause physical harm. And honestly, would someone ever get imprisoned for embezzling a bucket of fish? No, the crime has to do with money not because money is more important but simply because the loss of money has the potential to cause physical harm to the victim of embezzlement. At some point in history, a bucket of fish was that important, but today it would be the money or property worth money.

If you really wanted to debate this two ideas, I think it would be a far better debate to discuss the morals of the two issues rather than the "criminal" aspect of them. Adultery can not come near being considered a "crime" when it deals with emotional harm. Morally though, that is another story. Morals, when it comes to marriage do not belong to society but belong to the individual. If one chooses sexual fidelity as a part of their marriage morals, who am I to call them wrong? If I choose a different view of sexuality in as my marital views, who is to say that I am wrong? Not everyone believes in a god who judges and deems what our morals should be. If we are not physically harming another person, then why should society deem what our thoughts and morals should be? Really, doesn't the right to choose what marriage and it's obligations are belong to each. It should only be fair that we each have a partner who agrees to our interpretations and beliefs of what makes a marriage.

In the end, I say that you have two completely different issues here which should in no way be compared to one another. Adultery defines a type of sex between two consenting adults which is not a crime. Embezzlement defines a type of stealing which is a crime.

Monday, December 13, 2004 4:23:00 PM  
Blogger Peter Young said...

Embezzlement is defined as the fraudulent appropriation to ones own use of property lawfully in his
possession. In other words, in order to embezzle, a person must lawfully have the right to possess
something (i.e. money or property) claiming that they will use it for the purpose intended (the fraud) but
instead he uses it for his own purposes. The classic example is that of a bank teller who uses money
from customers for his own purposes.

As for the illegality of adultery, some states do retain the common law crime of adultery. Alabama, for
example, lists adultery a class B misdemeanor. § 13A-13-2, Ala. Code 1975. But even then, many
states find prosecuting adultery a waste of resources because it is difficult to prove under the more
substantial “beyond a reasonable doubt” standard. Additionally, many victims of adultery are not that
willing to come forward and help the prosecution. For the most part, adultery has become a matter for
civil litigation. All states still retain “at fault” divorces which, theoretically, allows for a greater
distribution of assets to the innocent spouse.

But, on a personal note, I don’t believe that these crimes are truly comparable in the way you wish.
Embezzlement is more then just the “breaking the faith” between two people. It is the use of something
that belongs to another. It is most often understood as a form of theft. To compare adultery would be
saying that a spouse is the property of the other spouse. And that the adulterer is using that spouse for
his own purposes. I’m not sure, but this seems to absolve the “cheating” spouse from fault. If this were
actually the case it would be more akin to rape than adultery.

Your take on the issue looks to punish the wayward spouse. For this would be the person who would
break the faith, since the third party does not have a faith to break with either of the spouses. In order
for this understanding to be compared to embezzlement, the cheating spouse’s body would have to be
considered to be the property of the non-cheating spouse. I’m not sure we want to go there either. If
our spouses body is ours as property, then should my eyes fail, I could demand my wife’s eyes be given
to me.

Most states that have adultery as a crime, have it as a way to punish the outsider. Consider §
13A-13-2, Ala. Code 1975, this law punishes the outsider if he engages in sexual intercourse with
another person who is not his spouse and lives in cohabitation with that other person when he or that
other person is married.

Monday, December 13, 2004 4:48:00 PM  
Blogger Sarah Dylan Breuer said...

I just wanted to say:

- Heya! (Heya!) Wonderful to run across a fellow GenX (I'm 34) Anglican blogger!
- You just won the prize for Best Melding of Cheesy Pop Culture and Obscure Theological Term in a Blog Post. (What should the prize be called? We theoblogicals need our own little-watched awards show, with attendant statuary.)
- Keep in touch! And the Ph.D. application process isn't as mysterious as it seems -- feel free to drop me a line, and let me know a little about your particular interests, if you'd like to get my take on it.



Tuesday, December 14, 2004 1:58:00 AM  
Blogger Jason said...

Thanks, Peter. I am out of my depth in talking about specific statutes and I hoped you would weigh in.

Your finer definition of embezzlement actually supports my point. Embezzlement, as opposed to mere theft, is predicated on a relationship of trust. A cutpurse might snatch a necklace in the park, and that would not be embezzlement since there was no specific trust to violate. A bank teller might take money from his till to give to his sick mother (say), and that would be a violation of the trust established between the bank and the teller, a trust which specifies that the banker will serve the relationship (i.e. the interests of the bank) over his own interests. (Side note: why are the interests of the bank the “relationship”, why does the trust not specify the banker will simply serve the bank? Because the banker is not bound to do anything that the bank (or its representative) dictates: “shine my shoes” for example. The banker is bound to perform the duties of that relationship, and the bank is to perform its duties (a salary and paid time off, for example).)

Keeping in mind that I am working on a broader canvas than just the language of the statute, embezzlement is still, by definition, a violation of a trust between two people. (It may involve a third, perhaps one who receives misappropriated funds or goods, but it need not.)

Adultery is the same, a violation of a trust between two people (Although it is hard to imagine how it would not involve at least a third party.)

The difference is that one involves a discrete piece of property (whether money or goods), while the other involves the relationship itself. In one sense, of course, the married couple are each other’s property, although not each other’s possessions. (If one thinks that being another’s property implies that abuse is acceptable, then perhaps you have an unhealthy with your non-sentient property – I’d hate to be your lawnmower!)

I am not claiming that they are identical in all aspects. I am claiming they are analogous. Further, I am claiming:

1) The distinction between private and public spheres that the typical distinction relies on is problematic;
2) It is a little odd that we consider enforcing fidelity in business relationships acceptable but enforcing fidelity in personal relationships suspect; and
3) That since each is a matter between two people, it is strange that they are not prosecuted in the same forum (whether between the people involved, or in the law courts)

Moreover, if we really (as a society) buy in to this private-public distinction, I think it a charming anachronism that you had to have testimony to your moral rectitude to be licensed by the Illinois State Bar (a role which I fulfilled on your behalf without compunction, by the way). Kristen also had to have similar witnesses for her licensing, and needless to say I was carefully scrutinized, too. Partially, this is a remnant of the professions, positions which were taken to involve public trust, and about which I will blog sometime in the future. But this also betrays the fact that we (at least some) still believe there is a connection between public and private, that you would be a lesser attorney if you (say) kicked puppies, that Kristen would be a lesser pharmacist if she (say) drank a fifth of vodka on days that ended in –y, or that I would be a lesser priest if I (say) slept around with people I wasn’t married to. This is also lying in the background of many people’s concern about Bill Clinton’s adultery, and the connection with the question of his fitness to govern (not to mention similar concerns about W’s past).

Oh, I am also claiming that (considered as a society) we value money over relationships, which is a form of narcissism.

Thanks for your thoughts; I look forward to your response.

Tuesday, December 14, 2004 3:27:00 AM  
Blogger Jason said...


Thank you for your response, you raise some interesting points. I will not be able to reply to them all, but I will try to touch on some of your major lines of reasoning.

You mention that adultery is a kind of sex, but I’m not so sure. I specifically didn’t mention sex in my initial post because I did not want to reduce it to that. Adultery may involve sex, and usually does, but it need not – just like a marriage. (Can someone who is sexually dysfunctional still wander away from a marriage and violate the trust involved? It would seem so.) Perhaps “unfaithfulness” would be a better way to put it than adultery; as you say later in your comment, a marriage is about a lot more than sex, and the same goes for faithfulness.

In your second paragraph you mention that embezzling is a crime, while in your sixth paragraph you say that adultery is not a crime (as it is “sex between two consenting adults”). I will grant you that this is descriptively true, but these statements don’t make persuasive points because they beg the question: in the initial blog entry, I am asking why one is a crime and the other not; to respond that one is and the other is not does not answer the question.

You end up recommending that we consider adultery a moral issue, while embezzlement is a legal issue. This ends up repeating the distinction between private (moral) and public (legal) that I am contesting – although perhaps I am not doing so persuasively! To have made a stronger case I would have provided more examples of why this division is questionable or misguided, for example:

There was a (shameful) time in America when owning another person as a slave was considered a personal matter, not a matter for public meddling. There was another time (equally shameful) when the wife was considered the husband’s possession, and if the husband wanted to smack around his own possession, why would anyone stop him? These are a few ways that the distinction between public and private has been abused in the past. (There are other objections to it, too, some particularly Christian, others not so specifically so, but these cases might be a start for now.)

It might possibly be objected – as you intimate above – that these are properly matters for criminal prosecution because they involve physical harm. But it is not clear to me why physical harm (or for that matter “consenting adults”) is the benchmark? On your account, why should anyone respect another’s person? If I can harm someone physically, why shouldn’t I? To object that it is illegal begs the question: why is it illegal? “Consent” and “non-interference/ refraining from physical harm” are not simply common sense or obvious or non-arbitrary.

As I said, you brought a lot to your response, and I may not have even done justice to those few points to which I responded. Please feel free to post a follow up comment if you would like.

Tuesday, December 14, 2004 4:03:00 AM  
Blogger Jason said...

Hey Folks:
I want to be clear here that I am musing on what seems to be an inconsistency and what might be the causes behind it. I am not specifically suggesting that we need to criminalize adultery or de-criminalize embezzlement; nor would I dream of sanctioning either one. So no "scarlet letter A" comments, OK? (Besides, it would be cliche.)

Tuesday, December 14, 2004 4:12:00 AM  
Blogger Peter Young said...

Your point that this society, particularly the courts, are more interested in the fidelity of business relations than the fidelity of marital relations is true. Our society places a premium on the accumulation of stuff.

But the legal sphere has always been more about money than anything else. The legal profession works best with money. It is easy to assess damages from one to another, easier to track and easier to get everyone to understand. Most states criminal code can be made into a 150 page booklet or less. While the tax codes fill several binders. We are more interested in money.

But I think part of the reason that adultery is not as criminal as adultery, is that we value the marriage more than the business relationship. I say this as we are more interested, in theory, in saving it.

I can be embezzled by a great number of people today. But only my wife can commit adultery. Should my bank take my money: I can sue; get my money back; and go to another bank without much damage to myself or society as a whole. My relationship with the bank which did me wrong, or the trust between us, is not seen as so important as to save.

But adultery takes place in a family context. There is much more lip service given to saving a family than to saving a business relationship. There are whole practices of family therapy dedicated to helping families survive this type of damage.

It would be almost inconceivable to believe that a family would be able to survive adultery after a criminal proceeding where one spouse would be required to testify against the other. And that testimony will place the "cheating" spouse in jeopardy to loose at the least cash, or freedom from incarceration.

Tuesday, December 14, 2004 3:30:00 PM  
Blogger Doug Wood said...

Your argument is interesting ... I don't have any raw data, but it seems to me that in the past infidelity was largely the domain of Men. I won't be surprised if the legality of adultery is considered more closely as more and more women join the ranks of adulterers. What is good for the goose has seldom been good for the gander.

On a side note, a good friend went to prison for a year for embezzlement some time back. While I'm not entirely sure the punishment didn't fit the crime (though I truly wish she had never had to go through the experience -- or put herself in that situation), I was disgusted that a teen in our community convicted of raping a girl passed out at a party was given a lesser sentence. At the time a friend pointed out that it is almost always better to commit a crime against a person than a crime against property. A sad commentary for sure!

Tuesday, December 21, 2004 10:14:00 PM  
Blogger Reason1 said...

I disagree to the idea that embezzelers are taking something which belongs to someone else without receiving any permission is any different than a cheating spouse or an adultress. Embezzelment is as bad as adultry. I know some people feel it's okay to be an adulter. But is it really ok to steal or cheat? The Bible says no. When two people join in marriage either by law or God, they make the decision to be honest and trusting of one another. They join in a contract of commitment and monogomy. And if you truly believe that sex is what makes and breaks a marriage then you definatily don't understand the true meaning of marriage. Sex is just an act to promote procreation. It is an animalistic thing. Marriage is a commitment of the mind, heart, soul and body. Sex is secondary. when you commit to marriage you enter a contract. That commits two parties to become one being. To coin a phrase what's mine is your and what's yours is mine. So in a sense when you marry you join together as property to each other. And property can be stolen just as easliy as money.
However, If you think of marriage as being a business deal. When a person signs a contract, which is an agreement between two parties, they are expected to deliver on thier agreement. When one party fails to deliver then the trust and faith that this contract was based on is no longer vaild. Who should be punished for this failure the one who didn't deliver on the contract or the one who put thier trust and faith on the line when they choose to sign the contract?
When a couple marries or dedicates thier lives to one another they enter into an agreement with each other. The same way a client agrees in an investment. The client trusts that their money, goods, faith are being handled properly. Thus, when the client finds out they have been cheated out of thier money or a person finds out thier spouse chose to break the agreement with out permission it is the client or innocent spouse who's trust had indeed been broken. This make these two thing very much the same thing.

Monday, September 05, 2005 7:32:00 PM  
Blogger danielle said...

Stealing money and sleeping around, are these really the type of crimes that should be the basis of concern whether they recieve prison time or not? I know rapists that have gotten off without prison time. I don't even think embezzlers should be imprisoned. Do you know how much it cost to keep a prisoner in prison each day? More than I pay to live in my own house.

I believe the punishment should fit the crime. If a person is convicted of embezzlement, depending on the amount of money they embezzled, they should have to pay it back, do some community service, pay some penalties, and loose their job. Isn't that punishment enough? Save the prison for violent offenders.

Wednesday, January 04, 2006 2:29:00 AM  

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