If new divorce law passes, Montana is going to have a lot more felons

February 9, 2023 4:32 am

Rep. Bob Phalen asks questions in committee during the 2023 Montana Legislature. (Keila Szpaller/The Daily Montanan)

If Montana lawmakers are worried about felons and crime rates, just wait till they make it even easier to become one.

Rep. Bob Phalen, R-Lindsay, believes that adultery in marriage should be a felony.

“Any unfaithful person should not get half in my humble opinion. Or anything,” he said while contemplating a bill that would allow judges to consider adultery in cases of divorce.

Of course, the case study for all of this was a constituent who testified that he was a victim — his words, not mine — of an unfaithful wife.

I wonder if Phalen’s response would have been different if it was a woman fighting against her cheating husband.

We don’t know because while Phalen has plenty of ideas on adultery and divorce, he doesn’t seem so quite eager to discuss them with the media. He ducked several requests to comment on what he meant, so I’ll just have to take his words.

“It should be law that’s it’s a felony if you are unfaithful,” he continued, to urge the legislative staff who received the unenviable task of turning Phalen’s brilliance into something as mundane as law. “There must be consequences for an unfaithful spouse, just sayin’!”

While adultery and divorce undoubtedly cause pain and immense suffering, I am not sure who is helped by laws that are predicated on vindictiveness and revenge. You would think as a lawmaker, he’d be more interested in thoughtful, just laws, not merely helping his buddy get back at his ex-wife.

And in full disclosure: I’ve been through a divorce, and I cannot imagine how something like this would have made a more just or equitable outcome in what was easily one of the lowest points in my life.

Beyond the concept of updating our laws right back to the 1960s, the logistics of such a public policy run contrary to everything the Republicans allegedly stand for, except for their unusual habit of treating women poorly.

Courts are, by the legislature’s own standards, backlogged. The top priority for many of the lawmakers is crime.

Phalen’s adultery police would not only allow, but demand, that judges across the state start examining all the details of the feuding spouses’ most intimate aspects, their sex lives. These bills would mandate courts to hear even more of the lurid details of why marriages are breaking up.

For the divorcing couple, it would risk one of them losing everything at the slightest hint of infidelity; or force couples to stay together in dysfunctional relationships. In these measures, there don’t seem to be any winners, only losers – except for divorce attorneys, who continue to bill by the hour until the court has determined any sexual peccadilloes, if any.

Does the adultery require a physical act, or does jumping on an app or website count? These and more questions may be part of the future of Montana case law, if such an act were to pass.

Assuming that what Phalen is “just sayin’” is what he just means, the courts would then have to figure out how to prosecute the unfaithful spouse as a felon, which would seem to burden an already packed court calendar.

And if you think our jails and prisons are full now, just wait till they’re stuffed with every person in the state who cheated during their marriage. My first thought when I sat to puzzle out this draconian legislation was: I wonder how many legislators would be serving time rather than serving their constituents?

I also question Phalen’s logic: The unfaithful spouse gets nothing?

Nothing, really? They don’t get their clothes, any money, and a vehicle? They don’t get to see their children, and they’re felons?

Phalen or his other Republican friends in Helena may believe I am exaggerating, but not getting “anything” – his word, not mine – seems pretty clear.

It seems like any property, money or assets that were amassed during the marriage should be given some consideration, and, in fact, are the basis of most states’ law that assumes during a marriage, both spouses work together for their mutual benefit and success. Phalen’s bill couldn’t be farther away from our notion of equality under the law.

Phalen continued to tip his hand when he was working on this legislation by claiming: “I have a tendency to wonder myself because if you are an attractive gal, then you might have a better chance of swaying a judge. Men are men no matter what they wear.”

It should be no surprise that Phalen wants to turn back clock to 1963, the last time Montana had a similar law on the books, because his viewpoint is at least that old.

His statement is loaded with assumptions that give away his true feelings – that most men are judges; that men can only decide issues based on the looks of a female; that judges would be swayed by the sexual attractiveness of a woman so much that they’d give unequal treatment; and that men are such troglodytes that we look the same no matter what we wear.

Speak for yourself, Rep. Phalen, but the existence of Speedo swimming suits should be enough to shoot that theory down like a Chinese spy balloon.

Keep in mind that during the last several legislative sessions, male lawmakers have been obsessed by what females in the legislature wear because they won’t cover up, meanwhile men can’t be trusted to stay focused because of their seductive … necklines.

For all that Republicans fear the creeping of socialism, is there any concern on the right that we’re looking a lot more like the Taliban than Trotsky?

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.