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September 26, 1968

In re Petition for Naturalization of Egbert William JOHNSON

The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, District Judge.

 This case poses the interesting question of whether a man who has sexual intercourse with a woman in the mistaken belief that she is unmarried is guilty of adultery within the definition of the Immigration and Nationality Act and so, as a matter of law, lacks the good moral character requisite for naturalization. 8 U.S.C. §§ 1101(f)(2), 1427(a)(3). Despite contentions in the past of the Immigration and Naturalization Service that the answer is yes, we agree with the position of the Service in this case that the answer is no. Compare Petition of Naturalization of Athanasoulis, No. 18100, U.S.D.C., Toledo, Ohio (1966) (rejecting recommendation that petition be denied) with In the Matter of W - Y - S -, 6 Immigration and Nationality Dec. 801 (1955) (appeal denied on ground of adultery).

 Petitioner, Egbert William Johnson, a forty year old British citizen, filed a petition for naturalization with this Court on August 16, 1966. The only doubt concerning his case arises from a relationship with his wife, the former Mrs. Sarah Daughtry.

 The Daughtrys had married in 1952. They separated in 1954, after the birth of a son. There was no divorce and the marriage continued in effect until the death of Mr. Daughtry on December 24, 1966.

 Long after the separation, petitioner and the then Mrs. Daughtry met in 1961. She informed him that she was unmarried and a widow. Petitioner proposed marriage to her several times. Mrs. Daughtry refused his proposals on the ground that she wished to wait until her son was less dependent. But she consented to sexual relations in 1966 even though she knew that she was still married. Petitioner had no knowledge of Mrs. Daughtry's marital status.

 The relationship of petitioner and his future wife was private; they did not cohabit; there was no commercialization or flaunting; there was no promiscuity; there was no loss of good reputation. Cf. Petition of Kielblock, 163 F. Supp. 687, 688 (D.C.Cal.1958). Two middle-aged people contemplating marriage bedded together from time to time.

 Clause (3) of subdivision (a) of section 1427 of title 8 of the United States Code requires that a petitioner for naturalization has been of "good moral character" during the five years preceding his petition. "For the purposes" of the statute "No person shall be regarded as * * * a person of good moral character" who "during such period has committed adultery." 8 U.S.C. § 1101(f)(2). Nowhere in the statute is "adultery" defined.

 The word "adultery" lacks a uniform meaning. Under the statutes of New York, the state in which the extra-marital relations took place, a "person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse." N.Y.Penal Law, McKinney's Consol. Laws, c. 40, § 255.17 (1967). This statute, effective September 1, 1967, also provides that "[in] any prosecution for * * * adultery, it is an affirmative defense that the defendant acted under a reasonable belief that both he and the other person * * * to the sexual intercourse * * * were unmarried." N.Y.Penal Law § 255.20 (1967). At the time the acts were committed, however, the New York law defined the crime of adultery as "the sexual intercourse of two persons, either of whom is married to a third person." Former N.Y.Penal Law § 100. There was then no explicit provision for the defense of mistaken belief in regard to the marital status of the other party to coition. Cf. People v. Hopkins, 38 Misc.2d 459, 238 N.Y.S.2d 485, 492 (Sup.Ct. 1963) (woman not guilty of adultery if she was misled as to male's marital status; dictum).

 Putting aside the question of whether adultery encompasses only heterosexual intercourse (cf. Cohen v. Cohen, 200 Misc. 19, 103 N.Y.S.2d 426 (Sup.Ct. 1961); N.Y.Domestic Relations Law, McKinney's Consol.Laws, c. 14, § 170(4) (Supp.1967) (newly defining adultery to include homosexual intercourse)), the possible divergencies in meaning of the term "adultery" in the federal statute expand rapidly once the applicability of the laws of the states is considered. There is a basic distinction between those states which follow the common-law tort definition for criminal cases, and those which follow the law formerly applied by the ecclesiastical courts.

 In those states using the common-law rule - six in number - adultery can be committed only if the woman is married; the marital status of the man is irrelevant. If the woman is married, both parties commit adultery; if not, neither party commits the crime. See Moore, the Diverse Definitions of Criminal Adultery, 30 U.Kansas City L.Rev. 219, 223 (1962); Perkins, Criminal Law 328-29 (1957).

 Where the ecclesiastical rule is followed - in seven states - adultery is committed solely by the married party to the extra-marital intercourse; the other party commits only fornication. There is adultery on the part of the male, if he is the married party. Moore, The Diverse Definitions of Criminal Adultery, 30 U.Kansas City L.Rev. 219, 223-24 (1962).

 The remaining states either do not define the crime by statute or case law - three - or have adopted a modified approach combining the ecclesiastical and common-law theories. In these states, adultery is committed by both parties, if either party is married. Id. at 224-26. See generally the appendix summary of state statutes contained in Mueller, Legal Regulation of Sexual Conduct 84-88 (1961).

 Many varying state policies modify the basic statutory approaches. In some states, only open and notorious cohabitation (the true common-law crime, as opposed to the tort of adultery) constitutes adultery. E.g., California Penal Code, §§ 269a and 269b; San Chez v. Superior Court, 153 Cal.App.2d 162, 165, 314 P.2d 135, 137, 138 (1957). In others, a state policy of forgiveness exists if the parties "later intermarry." E.g., In re Briedis, 238 F. Supp. 149, 150 (N.D.Ill.1965) (Illinois law; dictum).

 Some states apparently hold that ignorance of the marital status of the other party provides no defense. Commonwealth v. Elwell, 43 Mass. 190 (1840); State v. Anderson, 140 Iowa 445, 118 N.W. 772 (1908). Others permit such a defense. E.g., N.Y.Penal Law § ...

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