CHICAGO — An appeals court judge who concurred in a ruling regarding a man who sued his wife for reading his email correspondence with several mistresses issued a scathing opinion this week, declaring that the man was wrong to request a “reward for concealing criminal activity,” since adultery in Illinois remains a crime.
While the Seventh Circuit Court of Appeals ultimately ruled that the man’s lawsuit “technically” was valid, Judge Richard Posner, appointed to the bench by then-President Ronald Reagan, scourged the man’s suit against his estranged wife as being a “pure waste of judicial resources.”
“Mr. Epstein wanted to conceal his infidelity from his wife primarily it seems because the revelation of it would give her added leverage in a divorce proceeding. 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,” he wrote, noting, however, that it is rarely prosecuted.
“We might compare Mrs. Epstein to a bounty hunter—a private person who promotes a governmental interest. She has uncovered criminal conduct hurtful to herself, and deserves compensation, such as a more generous settlement in her divorce proceeding,” Posner proclaimed.
According to reports, Barry Epstein’s wife, Paula, filed for divorce in 2011, asserting that her husband was a serial adulterer. When Epstein asked her to prove it, during the discovery proceeding, she produced copies of his email correspondence with several women.
Epstein consequently concluded that his wife had set up his email to forward to hers, so she could read his messages. In turn, he sued her for violating the federal Wiretapping and Electronic Surveillance Act, as well as her attorney for releasing the emails in the discovery.
While Epstein’s suit was initially dismissed by a district court, upon appeal to the Seventh Circuit in Chicago, the dismissal was partially reversed. The court concluded that Paula Epstein’s attorney could not be held liable for showing Barry Epstein his own emails during the discovery, but said that technically, Epstein had a case against his wife.
The decision was written by Judge Diane Sykes, who is stated to be among President-elect Donald Trump’s top picks for a U.S. Supreme Court justice.
“Even if the Wiretap Act covers only contemporaneous interceptions, Barry has stated a Wiretap Act claim against Paula, and dismissal of the claim against her was error,” she wrote on behalf of the three judge panel, but added that “Congress probably didn’t anticipate its use as a tactical weapon in a divorce proceeding.”
Posner, although penning a concurring opinion, seemed reluctant in the matter, and was more upset that the law could be used to protect adulterers, especially since the man had sought to hide his indiscretions—criminal adultery that was exposed by his wife.
“I don’t understand why law should promote dishonesty and deception by protecting an undeserved, a rightly tarnished, reputation,” he wrote.
“[Epstein’s] husband’s suit under the Federal Wiretap Act is more than a pure waste of judicial resources: it is a suit seeking a reward for concealing criminal activity,” Posner declared. “Had the issue been raised in the litigation, I would vote to interpret the Act as being inapplicable to—and therefore failing to create a remedy for—wiretaps intended, and reasonably likely, to obtain evidence of crime, as in this case, in which the plaintiff invoked the Act in an effort to hide evidence of his adultery from his wife.”