Last month brought the revelation that someone had managed to hack the database of Avid Life Media's primary source of revenue; the AshleyMadison.com website. The report that some 34,000,000 names were now available for discovery has prompted a huge controversy and a lot of angst among its subscribers. As the scandal progressed it claimed the job of CEO and founder Noel Biederman, who resigned on August 27.
But the big news today is not about "Avid Life" but life itself. Reports are circulating that because women never really were interested in having an affair, they formed only about 5% of the subscription base. So, how does one run a dating business with 19 men searching in a pool for each woman? Reports on sites like Salon and Gizmodo are suggesting that the easiest way to accommodate was to create something called a feminine robot or "fembot" who used programmed titillating "chat" to allow male customers to think that they had the interest of a live woman who was giving consideration to having an affair. Needless to say, this conversation did not have to go very deep to keep an electronically aroused male customer interested in keeping his subscription current. The article posted on Gizmodo contains a letter from the California Attorney General asking Avid Life to respond to a customer fraud complaint. The customer complaint is also revealed and he does seem to make a point when asserting that some of the women with whom he was corresponding were reportedly logged on all day Christmas. Even the most licentious married woman typically takes off Christmas morning, if only to see her spouse and kids open their gifts, right?
So, it would appear that while the website may have promoted adultery, it not clear just how much product was delivered, so to speak. Now the question becomes, is it enough to intend adultery? Under Pennsylvania law, that's a problem. Back in the day when adultery was a crime, the requirement was a "carnal connection." As we know, Ashley Madison did not keep track or even charge for carnal connections. Fees were charged based upon electronic ones. For a person to secure a divorce premised upon adultery the evidence needed to be "direct and clear". And while Pennsylvania adopted the English rule that adultery could be proved by circumstantial evidence, this produced what is called the "inclination and opportunity rule." This was a three step test that required proof of the inclination of the defendant; inclination of the co-respondent and circumstances which established that the two had the opportunity to fulfill their shared desires. But, while that test seems quite loose the Courts were also emphatic that suspicion was not a substitute for proof. Thus in a 1921 Allegheny County case, man and woman were found registered in the same room of a hotel but before they reached their assigned room, a hotel detective intercepted the woman and ordered her to leave. Yes to inclination; yes to opportunity but the commission of the "act" was thwarted. Had they been discovered leaving the room together the following morning, another result would have been certain. See Naylor v. Naylor 59 Pa. Super. 547, 554 (1915).
But, for those who discover a male spouse as a registered customer of Ashley, the road will not be easy even though paved with bad intentions. The "intent" is clearly there where the website shrieks that "Life is short. Have an Affair." But the intent of the co-respondent is not so easy to gauge if the co-respondent is little more than an algorithm written to make suggestive comments and ask cutesy questions. One can't have carnal connection with an algorithm no matter how spirited the attempt. Computer programs don't have intent and certainly don't offer much "opportunity" for physical connection. So before loading up your subpoena to the Toronto based owner of Ashley, think twice. The rumors are the girl just doesn't deliver.
N.B. We should also mention that rumors have circulated that Avid Life Media did not do much to verify who was on its website. This creates an authentication problem under the recent Superior Court decision in Commonwealth v. Koch, 29 A. 3d 996 (2013). Of course, credit card or other confidential information was provided to open an account, the authentication issue may well disappear.
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