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Marital Adultery and Digital Harassment

- Featured article by LAWYERS-ONLINE.CO.ZA - September 2018

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In today’s article we take a look at the very fine line between virtual adultery and digital harassment and what legal action can be taken in such a case.

Recently we received a request in which someone asked if a case can be made against the individual for sexting another person’s spouse, even after being in agreement about the social activity.

This request really addresses two factors; marital adultery and digital harassment.

Marital Adultery:

The first thing to understand here is that adultery can result in divorce, but South Africa functions under a no fault system, which means the guilty party cannot be sued for damages. South Africa also does not recognise adultery as the cause of the irretrievable breakdown of a marriage. The law recognises that when adultery is committed, it is a side effect of an already broken down marriage.

The second thing to understand is that while devastating for the innocent party, cybersex or sexting is not legally perceived as infidelity; it does not reach the level of intimacy necessary for it to function as adultery under the Divorce Act.

Digital Harassment:

South Africa doesn’t officially have a digital harassment Act but recognises harassment through electronic communication in the current Harassment Act.

There are many actions that constitute harassment but most relevant in this situation would include watching, pursuing or accosting a complainant or someone in a close relationship with the complainant such as a spouse or family member. Of course, harassment includes sexual attention from a person who knows or reasonably knows such attention is unwelcome.

Sexual harassment includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature.

Both factors are relevant in the above enquiry. The marriage may come to an end as the partner may feel betrayed by the conduct. The innocent party may open a harassment case as can the party who received the communication. However, the enquiring party states that both partners were in agreement about the communications. If it can be proven, no case can really be made.

By all appearances, the communications were welcome and agreed upon. However, if the attention was unwelcome legal action can be pursued.

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