The abolition of the crime of adultery in 1982 was part of a wider program of reforms introduced by the newly elected government of Andreas Papandreou, which included the establishment of civil marriage and the reform of family law.
Although today these reforms seem self-evident, at the time they met a strong reaction from the official opposition, the Church, but also from a large part of the Greek people.
In particular, the crime of adultery was abolished by Law 1272/1982 (Minister of Justice Professor Georgios-Alexandros Magkakis), published in the Official Gazette of August 20, 1982. Until its abolition, Article 357 of the Civil Code read as follows:
Article 357 of the Criminal Code: “The husband guilty of adultery and his accomplice shall be punished by imprisonment for up to one year…”.
“1. The husband guilty of adultery and his accomplice shall be punished by imprisonment for up to one year. The prosecution can only be carried out on the offense of the victim.
2. If at the time of the act the spouses did not live together, the court, judging the particular circumstances, even if the act took place, may judge the act unpunished.
3. Adultery remains unpunished, if the offended spouse is guilty of it.”
It is even worth noting that even today article 357 remains empty in the current criminal code, reminding the absence of a crime that was an integral part of the criminal legislation of the modern Greek state.
Why, then, was adultery a crime until then, that is, for almost 150 years?
Dichotomy in jurisprudence
Central is the position of the criminal theory that a crime is – must be – an act with a strong socio-moral abhorrence. This discredit of the act and the negative-stigmatizing treatment of the perpetrators was a given, since adultery contradicted a basic principle of the great religions (Christianity, Mohammedanism, Judaism): no adultery. So it was almost self-evident that the heaviest religious-moral sin “had to” also constitute a crime. The decriminalization of adultery became possible only with the prevalence of the secular state and the separation of State and Church, as only in this way was it possible not to apply the relationship of equivalence between sin and crime. Where the regime is theocratic, as is the case even today in many Muslim states, adultery is punished as a crime, often with severe corporal punishment (caning) or, more rarely, even with the death of the unfaithful wife. It would, however, be scientifically incorrect to consider that the correct abolition of the crime of adultery in 1982 was a delayed adaptation of Greece in relation to other European legislations, and this is because large European countries such as Italy and, above all, legally our relative Germany had abolished the crime several years earlier (1969), but our country was followed in time by states such as Belgium (1987), Switzerland (1989) and most recently Austria (1997). Finally, it is worth noting that even today adultery is a criminal offense in several US states, even if the relevant provisions are rarely implemented and the sanctions are symbolic in nature.
Italy and Germany decriminalized adultery in ’69, Belgium in ’87, Switzerland in ’89 and Austria in ’97.
Before the abrogation of article 357, there was a dichotomy in the field of Greek, and not only, legal science regarding the protected legal good: the stricter and rather conservative view accepted that marriage is protected as an institution and therefore when we refer to the criminality or non-criminality of adultery, we must have before us marriage as an institution and not the face of the other spouse. The second, more lenient, point of view highlighted as a legal good the obligation of loyalty towards the other spouse. Regardless of this theoretical controversy, which today is of importance only to historians of criminal law, the opinion was nevertheless supported that the Greek legislator, like others, had formulated the provision in such a way that we were only one step before the complete abolition of the crime: The consent or tolerance of the other spouse, the lack of cohabitation and the condition of submitting a relevant petition were additional, necessary conditions and thus the criminal hell of any extramarital relationship was avoided.
Adaptation to social and European data
If one wanted to mention the reasons that contributed to the decriminalization of adultery, one could mainly mention the following:
Social conditions in post-political Greece had changed radically, with the result that adultery was no longer considered a crime by a large part of the population, but only a reason for divorce.
The change in these perceptions was also reflected in the later amendment (with Law 1419/1984) of Chapter 19 of the Criminal Code, which stopped referring to crimes against morals, but referred to crimes against sexual freedom.
The need to adapt to the European conditions due to the inclusion of Greece in the then EEC became imperative. The fact of the increase in Greek marriages with foreigners, marriages between people of different religions or people who were or declared themselves atheists also contributed to the need for adaptation.
The Church could no longer play the role of a coercive community that imposed or applauded penal rules, but addressed believers who voluntarily participated in the sacraments and voluntarily adapted to the values of their faith. This meant that, for the state, adultery fell within the regulatory domain of family law.
Adultery had effectively become a tool for issuing divorces against the unfaithful spouse.
Also, the crime of adultery had effectively devolved into a tool for issuing a divorce at the expense of the unfaithful spouse, while it was often used as a means of exposing and blackmailing “arrested on their own accord”, who were taken to police stations under comically tragic circumstances. After all, this theme had been included in Greek cinema films and theater scenes.
Finally, on a political level, the decriminalization of adultery functioned as a sign of change, which was expressed by the PASOK government, which at the time attempted with a series of laws (establishment of civil marriage, reform of family law, abolition of school aprons, establishment of monotony, recognition of resistance organizations ) to establish in the electorate the belief that it was not just another government scheme supported by another party, but an authority supported by and expressing other social and political forces.
In fact, moreover, if one looks at the minutes of the relevant meeting of the Parliament, the New Democracy (Anna Psarouda-Benaki) did not actually question the choice of decriminalizing adultery, but considered it more correct to amend the provision, which would gradually lead to the complete abolition her.
Today, forty years later, many of the questions raised at that time have lost much of their value, while for modern democratic legal classes, adultery is a behavior that does not fall within the regulatory field of criminal rules.
*Mr. Dimitrios Koupis is an associate professor of Criminal Law and Criminal Procedure at the School of Law of the National and Kapodistrian University of Athens.
*Editor: Evanthis Chatzivasiliou