Deborah Rhode writes that while adultery is admittedly not good, it should not be criminal. She argues that it should not generate a tort action either, because the original purposes for which the torts of alienation of affections and criminal conversation come from a time with quite different views about marriage and gender, while no-fault and speedy divorce today give adequate remedies to the wronged spouse. Further, adultery should not affect employment (as a politician or in the military) unless it directly impacts job performance.

My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, the destruction of trust that adultery both signals and produces does considerable damage. Second, though she certainly notes that the injured spouse has a beef against the adulterous one, and does briefly consider the harms done to children under various adultery scenarios, Rhode underplays the direct (through their own tendencies to trust or to be faithful as adults) and indirect (through the likely divorce to follow and its particular nastiness) damage done to the children of adulterous marriages.