Alienation of Affections:

For a modern — April 19, 2007 — decision involving this tort, see Fitch v. Valentine.

Mississippi is apparently one of six states that continues to recognize this tort, a tort that generally covers behavior through which a spouse "is wrongfully deprived of [his or her] rights to the 'services and companionship and consortium [of the other spouse].'" In many cases, including this one, the wrongful conduct is an outsider's sexual affair with one of the spouses. In principle, though, other behavior — including persuading a person to divorce the spouse, even without having sex with the person — could be covered as well.

John (mail):
Valentine? Yes, the plaintiff was named Johnny Valentine.

And let's hear it for Mississippi. You don't get many states that are serious about preserving our legal history.
8.23.2007 3:18pm
Mike BUSL07 (mail):
I wonder if they recognize the other heart balm actions, of which, of course, everyone's favorite is jactitation of marriage.
8.23.2007 3:21pm
Pol Mordreth (mail):
IANAL, but as far as i know it is primarily applied in Tennessee in regards to child custody / visitation, where both adults are enjoined from conduct or comments about the other in front of the children that could lead to 'alienation of affection'. IOW, I cannot say bad things about my ex (or allow others to say bad things about my ex) in front of the children. This an actionable tort here.

8.23.2007 3:26pm
Eugene Volokh (www):
Pol Mordreth: I think that's a different legal theory, though not an entirely unrelated one. Among other thing, saying bad things about the other parent ends up being contempt of court, not a tort; and requires an injunction to be actionable (which normal alienation of affection does not).
8.23.2007 3:41pm
Pol Mordreth (mail):
Ahh, I see. Thanks.
8.23.2007 3:45pm
Phantom (mail):
Eugene gets bit by the PC bug:

"is wrongfully deprived of his rights to the 'services and companionship and consortium [of the other spouse].'

I'm just guessing here, but I'd bet that the edit within the brackets was "of his wife." I'll also go out on a limb and say that Mississippi probably doesn't recognize gay marriage. But if the setup for the quote keeps the masculine pronoun, why use the term "the other spouse," when "his wife" is clear, consistent, and acceptable?

8.23.2007 3:51pm
James Fulford (mail):
Here's the one Court's "clear and consistent" version. Eugene's is better:

this Court held “[w]here a husband [wife] is wrongfully deprived of his rights to the ‘services and companionship and consortium of his [her] wife [husband],’ he [she] has a cause of action ‘against one who has interfered with his [her] domestic relations.’”
8.23.2007 4:00pm
Le Messurier (mail):
I may be way off on my thinking on this, as this is by no means a legal analysis, but it seems to me that the court missed the underlying principal of a letter of credit (LC). In this case we are dealing with a stand by letter of credit (as opposed to a commercial letter of credit). Its purpose is to substitute the credit of the issuing bank for that of the Fitch. It differs from a bond in that a bond is an insurance product upon which a "claim" may be made upon certain conditions and with certain proofs . The beneficiary of the LC has no requirement to make a provable claim, he only has to draw (draft)on the LC. Likely there is a requirement of a statement that a default has occurred but no proof is required. In this case the LC has collateral behind it, but that does not make the LC any more secure for the beneficiary, it only protects the bank should the LC be drawn upon. I am rather mystified as to why the bank even mentioned the collateral. Upon issuance and acceptance by the beneficiary the transaction effectively eliminates Fitch as a credit risk. The beneficiaries risk is totally with the bank. Acceptance of the LC means that they agree to look at full faith and credit of the bank for the money and not to Fitch if Fitch does not pay. This presumes that they believed the bank was credit worthy. I see no reason why the property should not be released.
8.23.2007 4:05pm
But if the setup for the quote keeps the masculine pronoun, why use the term "the other spouse," when "his wife" is clear, consistent, and acceptable?

It very well may be that the tort was generally only applicable to a man stealing another man's wife away. But, if it were applied regarless of gender that edit would be reasonable. "His" can be used generally to refer to a person when the gender of the person is unknown. This is decidedly not PC, but something we all understand and accept and it is certainly shorter than using "his or her" all the time or "their" as a singular or "that spouse's" or some other akward construction. "Wife," however doesn't usually have a gender-neutral sense.
8.23.2007 4:10pm
Baxter (mail) (www):
The courts say they don't recognize this tort, but they've allowed its nearly-identical twin to crash through the back doors by allowing "loss of consortium" damages where one's spouse suffers a wrong that produces no physical injury. E.g., Molien v. Kaiser Foundation Hospitals
27 Cal.3d 916, 616 P.2d 813 (19800; Barnes v. Outlaw, 192 Ariz. 283, 964 P.2d 484 (1998).
8.23.2007 4:11pm
Eugene Volokh (www):
Phantom: I should indeed have said "[his or her]," and I've changed the post accordingly.

The reason for the unisex usage here is not to be PC, but to avoid confusion: If I just said "his," people might plausibly assume that the tort applied only to husbands complaining about their wives' leaving, just as adultery was sometimes defined only to cover sex with a married woman.

Using the unisex terminology makes clear that today the tort is indeed unisex, no matter what may have been the case as to this tort and related legal rules in the past.
8.23.2007 4:41pm
Mark Lyon (mail) (www):
Mississippi has an elegant solution to the above gender dispute in the definitional section of our code:

Miss. Code Ann § 1-3-17. Gender, masculine to embrace the feminine.

Words in the masculine gender shall embrace a female as well as a male, unless a contrary intention may be manifest.

SOURCES: Codes, 1857, ch. 66, art. 7; 1871, Sec. 2936; 1880, Sec. 16; 1892, Sec. 1524; 1906, Sec. 1605; Hemingway's 1917, Sec. 1372; 1930, Sec. 1396; 1942, Sec. 704.
8.23.2007 5:48pm
To EV:

I figured that was the case, but was just teasing a little bit.

8.23.2007 6:06pm
Hattio (mail):
I'm curious about something. If, in principle, the tort doesn't describe a sexual (or romantic?) relationship between the Defendant and the Plaintiff's spouse, what exactly does wrongful mean? What would NOT be wrongful?

Could there be a class action by DV perpetrators against shelters for DV victims? Is just convincing somebody to leave because you think it is the best for them enough to protect you from the "wrongful" element. What if you think the spouse should leave because of emotional, but not physical abuse?
8.23.2007 6:08pm
milowent (mail) (www):
Though we consider ourselves far more advanced then our brethen to the southwest, alienation of affections and "criminal conversation" are also alive and well in North Carolina.
8.23.2007 6:09pm
Graham Simms:
Too bad the guy didn't make a first amendment claim. My guess is that Mr. Finch used some eloquent speech to convince Mrs. Valentine. Would have been interesting to see if the Supreme Court took the case.
8.23.2007 7:46pm
Graham Simms:
Or would this be part of the "right to romance?"
8.23.2007 7:49pm
I am curious. While it is fun to laugh at all things that in the past that are not as they are in the best of all possible worlds today, can someone explain the "advance" of no longer discouraging such behavior. In business, you can have tortuous interference with all sorts of contracts.

On a related note, is there a correlations between those who laugh at these laws and those who cannot understand reluctance to change the definition of marriage? Do those promulgating a new definition on one matter (required heterogenity of gender) actually want to change the definition in mumerous other ways. My sense, perhaps wrong, is there is a correlation. If such a correlation exists, does it strengthen or weaken the case of those who are opposed to such a redefinitions ?
8.25.2007 12:15am