Maggie Gallagher, blogging at National Review Online's The Corner, suggests (more or less) a revival of the tort of alienation of affections, which has been abolished in the vast majority of states:
An updated tort of adultery could look something like the document below the fold. This tort (drafted for Minnesota, don't ask me why) could be either expanded to include "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery," or we could choose to limit it to commerical enterprises. Such a tort would not prevent websites from facilitating hookups that include adulterous ones. It would prevent them from explicitly incorporating adultery into their advertising plan.
– DRAFT –
Minn. Stats. sec. 517.23. Intentional interference with marriage.
A person is liable for damages to a spouse for intentional interference with the spouse’s marriage [marital relationship] that causes injury to the spouse. An act of adultery between the defendant and the spouse of the plaintiff when the defendant knew or should have known that the plaintiff’s spouse was married shall constitute proof of intentional interference with the plaintiff’s marriage. [Damages awarded pursuant to this statute shall not exceed $500,000. This action shall be instituted within two years of the discovery of the adultery.]
(a) This proposed new tort reflects the policy articulated in Minnesota Const., art. I, sec. 8: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive....” Allen v. Pioneer Press Co., 40 Minn. 117, 122, 41 N.W. 936 (1889) (constitutional section is merely declaratory of general fundamental principles and leaves to legislature a wide range of discretion). It resembles the widely recognized action of tortious interference with contract, the contract in this case being the contract of marriage. Despite some similarities between this new tort and the common law actions for alienation of affections and criminal conversation, there are distinct differences: this action is much narrower in scope and explicitly provides in the statute for proof of what constitutes intention and interference. See Lockwood v. L, 67 Minn. 476, 70 N.W. 784 (1889).
(b) Intentional interference with a marriage simply requires proof that the act of adultery, which constitutes sexual infidelity and breach of the marriage “contract,” occurred at or after the defendant has or should have knowledge that the person with whom he or she is having sexual relations is married.
(c) Proof of interference in a marriage consists statutorily of proof of an act of adultery, sexual infidelity. During marriage, spouses owe to each other fidelity, because marriage is a monogamous, sexually exclusive relationship, distinguishing marriage from a dating or cohabiting relationship.
[(d) This statute includes a specific cap on damages, which does not violate Minn. Const. art. I, sec. 8. See Schweich v. Ziegler, Inc., 463 N.W. 2d 722 (1990), rehearing denied. Furthermore, the statute of limitations contained in this statute assures that the plaintiff must act within two years of discovery of the injury and resulting damage. See Lourdes High School of Rochester, Inc. v. Sheffield Brick & Title Co., 870 F.2d 443 (8th Cir. [Minn.] 1989).]
(1) This proposed new tort borrows not only from the common law tort of alienation of affection and the crime of criminal conversation (only nine states recognize one or both) but also from an analogy to the tort of intentional interference with a contract. It reduces the ambiguity of the alienation of affection action and adopts many of the elements of the criminal conversation statutes that had to be narrowly drawn because they punished conduct criminally. Its relative virtues include: (1) narrowly drawn remedy for injury to a marriage which presently is uncompensated; (2) exclusive definition of interference as an act of adultery, sexual relations with the spouse of the plaintiff, which eliminates difficult issues of causation; (3) intentional defined as simply sexual relations with the plaintiff’s spouse with knowledge (actual or presumed) that he or she is married.
In the American Law Institute’s Principles of the Law of Family Dissolution, the Reporters urge that rather than judge the moral relations of spouses in the divorce law, tort law and to a lesser extent criminal law should offer remedies. ALI Principles of the Law of Family Dissolution, sec. 5.02(2) (“Losses are allocated under this Chapter without regard to marital misconduct, but nothing in this Chapter is intended to foreclose a spouse from bringing a claim recognized under other law for injuries arising from conduct that occurred during the marriage.”); see also id. at Chapter 1, § 2. Increasingly, because divorce law does not provide sufficient remedies for a spouse who has been injured by the conduct of the other spouse or a spouse with another person, the law of tort offers the possibility of redressing a wrong that injured another, for example, recovery for fraudulent inducement to marry, communication during marriage of a sexually transmitted disease due to infidelity during marriage, violence during marriage resulting in physical injury to a spouse. This statutory tort reflects this same trend by providing a remedy for another case where the law of marriage and divorce fails to acknowledge and redress an injury to a spouse and the marital relationship.
(2) Need for this remedy: damage to an individual marriage and to the social institution of marriage that anchors the family. See William R. Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33 Ariz. L. J. 987 (2001).
(a) As with many torts recognized within the last seventy-five years, this tort permits recovery for emotional and relational harms. Marriage and family relationships, among society’s most important, have been left unprotected by comparison to economic and employment relationships. Currently grievous wrongs are suffered leaving people with the belief that they are victims and the law provides no redress. It so happens that women, rather than men, suffer more from adultery simply because more married men engage in adultery (Eric Rasmussen, An Economic Approach to Adultery [http://www.law.harvard.edu/programs/olin_center.html]) and if adultery leads to divorce as it often does, then collateral losses to women are often greater (economic). Men, however, suffer greater emotional injury from their wives’ adultery.
(b) Despite the dominance of “no-fault” divorce laws, the spouses themselves continue to think in fault terms and to attribute blame to their spouse. What they discover is that the promises the other spouse made at the time of marriage, the law and the court will not enforce. James Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth Century America (1997).
(c) Infidelity continues to be the most frequently cited reason for obtaining a divorce. Paul Amato & Denise Previti, People’s Reasons for Divorcing: Gender, Social Class, the Life Course, and Adjustment, 24 J. Fam. Issues 602 (July 2003).
(d) “Permanent availability,” as described by Norval Glenn in the Journal of Marriage and the Family, describes the cultural phenomenon of continual examination even of those persons who are married as a potential mate, a phenomenon influenced by easy, quick “no-fault” divorce. Norval D. Glenn, “The Recent Trend in Marital Success in the United States,” 53 J. Marriage & Fam. 261, 268 (quoting Bernard Farber, “The Future of the American Family: A Dialectical Account,” 8 J. Fam. Issues 431 (1987).
(e) Traditional remedies for adultery, in fault-based divorce law, establish the principle that spouses have an obligation of fidelity to each other. This tort establishes that others, outside of the marriage bond, have an obligation to respect that pledge of fidelity as well, by not engaging in sexual relationships with someone else’s spouse.
Now I think marriage is (generally speaking) a very valuable institution, and that adultery is (almost always) a very bad thing.
But not all bad things are the sorts of bad things that the legal system -- and in particular the tort liability system -- should address. Sometimes the proposed rules seem likely to cause much more bad than they would prevent. And often even if a narrow proposal would be proper, the proposals that are actually offered are much broader.
Here, for instance, are just a few of the problems with the above proposal:
1. Gallagher might be seeking a tort of adultery, but the proposed statute isn't limited to adultery; it deliberately makes actionable "intentional interference with the spouse's marriage that causes injury to the spouse," and gives adultery just as one special case. The statute would literally apply to someone who urges a friend to leave an abusive -- or unfaithful or just unsuitable -- spouse, or (say) a mother who effectively badmouths her son-in-law to her daughter. (This in fact was possible under the alienation of affections tort, though at least that tort often had a limited privilege for such statements.)
2. Families are, by and large, financial units, at least until a divorce; a husband's income benefits the wife, and vice versa. This is true even as to non-community-property, at least so long as the couple does not divorce (and much infidelity is indeed ultimately followed by reconciliation, not divorce, a result that I take it Gallagher would praise).
So say that Henry and Wanda are married, and Wanda has an affair with Alex. Henry sues Alex, not Wanda. (Presumably he could sue Wanda under the first sentence, though not if the statute is revised to avoid problem 1 by being limited to the second sentence; but if Henry plans to stay with Wanda, there's little benefit in suing her.) So Alex, a culpable party, loses up to $500,000 (if the damages cap is implemented). But Wanda, the more culpable party -- she's the one who broke the vows, after all -- actually gains $250,000, because her family will now get the $500,000. (Presumably the family would gain less if Wanda reconciles with Henry before the decision or settlement, since then Henry's damages would seem less; but I suppose a jury could find $500,000 worth of emotional distress, loss of trust, and such on Henry's part even if Henry takes Wanda back.)
I know that in principle tort liability for interference with contract by an outsider may exceed contract liability for the breach by the contracting party. But that has always struck me as a weakness of that branch of tort law; the better view, I think, is that an aider to misbehavior should be no more punished than the primary misbehaver himself, absent some special circumstances (e.g., the misbehaver is a child). And this proposal would exacerbate the weakness, by letting the breaker of the vows use the law to profit at the expense of her coconspirator (in a sense) in the enterprise.
3. Nor need this be iandvertent; consider a modern legal badger game: Wanda seduces Alex (or lets Alex seduce her; the line is often quite vague). Henry then threatens to sue. Alex settles, maybe not for the full $500,000 but for $100,000. The settlement doesn't hit the news. Wanda then seduces Andrew, Anthony, and so on, and each time Henry and Wanda pocket a settlement. All perfectly legal. But is it just? Not so much.
4. All this might be less of a problem if we thought this would vastly deter adultery, since with perfect deterrence there wouldn't be any recoveries. But of course people aren't going to be perfectly deterred; and some people -- especially those without enough assets to be worth suing -- won't be deterred at all. So the cheater who just wants sex would just have to get it from poorer partners.
Interestingly, this would probably have a sex-differential effect, to the extent heterosexual men find younger women more attractive and don't care as much about their partners' wealth or success, and tot he extent heterosexual women find successful men more attractive and don't care as much about their partners' youth. The man who is cruising for hot twentysomethings will find his prospective partners not much deterred, since they're largely judgment-proof. The woman who is more sexually attracted to men who have success and status will find her prospective partners more deterred, since they have more money to lose. I'm not in principle troubled by such sex-differential effects; most laws have some such effects to some extent. But the effects do help illustrate, I suspect, the likely perverse effects of such laws.
5. Of course, for every Henry who is willing to reconcile with his Wanda, or is even complicit in the affair (as in 2 or 3), there may be many who are reluctant to reconcile. The same is true if we flip the sex of the parties. They may initially be reluctant to acknowledge the affair to themselves, but once confronted with it, they may find it hard to take the cheating spouse back, even if there are good reasons for it (e.g., to preserve an intact household for the kids).
How will the prospect of a massive damages recovery affect that? Absent alienation of affections law, a Henry might well try to avoid seeing evidence of adultery, and once confronted with the adultery might well conclude that there's much loss for the family in a divorce and little gain (other than to his own pride and dignity). But if a spouse's adultery, especially with a rich partner, equals money to the victim spouse, the incentives (both conscious and subconscious) are changed. Spotting adultery becomes less unappealing, because there's a possible financial upside as well as emotional downside in identifying it. And once the adultery is discovered, taking the cheating spouse back promptly may well diminish the recovery (a jury is less likely to find damages if a major source of damages, a broken home, is absent).
What's more, the victim spouse will know that in the event of a divorce he or she will at least have an extra $500,000 to play with, money that needn't be shared with the cheating spouse. Why not split up?, the victim might reason -- at least I'll be well-off enough to live in comparative comfort, and maybe even pick up a better new spouse.
6. And of course let's not forget the obvious problems of proof and risk of perjury. Was there an act of adultery? Should the defendant have known the other person was married? Much of the time this will depend on what was said and done behind closed doors, and who seems more trustworthy and appealing to the jury. And this is even more so today than in the past, given that men and women have innocent friendships more often than decades ago; evidence of dinners together will no longer be particularly probative, and it will be all a swearing match among three people who may have all sorts of financial and emotional motives to lie. That's in fact one reason the alienation of affections tort has mostly been abolished.
As I said, you can love marriage and hate adultery without thinking that more tort liability will make things better.