In a recent case the 7th Circuit Court of Appeals held that a wife who had apparently discovered her husband’s infidelity by intercepting his emails to and from various women could be liable for violating the federal Wiretapping and Electronic Surveillance Act. 18 U.S.C. §2520. In his concurring opinion, Judge Richard Posner questioned whether the law should protect the husband’s privacy interest in concealing his infidelities from his wife.
As Judge Posner wrote: “I don’t understand why law should promote dishonesty and deception by protecting an undeserved, a rightly tarnished, reputation.” He went on to note that: “I don’t understand why federal, or for that matter, state, law should protect an interest so lacking in any social benefit, especially when one considers that adultery remains a crime in 20 of the nation’s 50 states – including Illinois. . ..” In fact, once upon a time, a husband who discovered his wife’s adultery with her lover in flagrante delicto and then in a state of passion murdered them both had a partial or complete defense at common law to a charge of murder as discussed here.
Life was more simple and, perhaps, more sensible then.