My Torts Class, and Alienation of Affections:

By the way, here's what I say in my syllabus about the alienation of affections and criminal conversation. I hope the "pedagogical goals" section helps explain why I've decided to include it, though part of the reason is just that it's a fun subject that's likely to get students excited, which is especially important late in the semester.

Alienation of affections basically consists of a defendant's (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff's spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to lovers who seduce one spouse away from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions). The related tort of criminal conversation basically consists of a defendant's having adulterous sex with plaintiff's spouse; but for our purposes, we'll treat that as a subset of alienation of affections (which is indeed the approach in some states).

These torts have been largely abolished, but remain recognized in Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. And they are not infrequently litigated, especially in North Carolina: A 2006 article in the Greensboro News & Record reports that "People filed an average of 245 such suits per year in North Carolina between 2000 and 2005, according to data provided by the state Administrative Office of the Courts."

By way of comparison, the well-established right of publicity tort seems to be litigated much less often (2 cases since 2000 in the NC-CS and NC-TRIALORDERS Westlaw databases, as opposed to 38 for the alienation of affections). Even on a national basis, an ALLCASES search for sy("right of publicity" ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. So there's life in this old tort yet, though query whether there should be.

Pedagogical goals: (1) Throughout most of the class, we've discussed how tort law has substantively expanded, so that formerly nontortious behavior is now treated as tortious. It's easy to assume, even unconsciously, that this trend is natural, irreversible, and right. But these torts help illustrate that torts could also be abrogated, either through judicial or statutory decision. (This has also happened in narrower contexts as to negligence and strict liability—consider, for instance, some tort reform proposals that have capped damages.) And considering the rejection of these torts might lead us to ask, especially in the coming units: Should any other torts be rejected or dramatically narrowed as well?

(2) The rejection of these torts also leads us to ask: Why would courts or legislatures reject liability for behavior that is pretty clearly wrongful (which adultery is, even if some forms of alienation of affections might not be), and that is pretty clearly emotionally damaging to the victim? Did they conclude that the damage wasn't real enough, because it isn't physical? (That would also bear on some of the other torts we've been discussing in the last few units, and that we'll discuss in the coming units.)

Did they conclude that the behavior should be within people's zone of liberty? (Why would that be so, about adultery? Also, should the same rationale apply to some of the other torts we discuss below?) Did they conclude there were especially severe problems of proof for these torts but not others? Did they have any other reasons?

(3) And we should be open to the possibility that the progress of the law here has been mistaken, and should be reversed. Should states readopt the torts. Why, or why not?

Related Posts (on one page):

  1. Alienation of Affections in North Carolina:
  2. My Torts Class, and Alienation of Affections:
  3. My Fall 2009 Torts Class:
Early Bird (mail):
Is North Carolina a state with a loose right of publicity tort, such that everyone has this right? I seem to recall that it's pretty narrow in lots of states, that you have to be famous to have it appropriated.

Moreover, just because the tort is well established doesn't mean that it actually gets breached all that much. It seems to me that there isn't all that much right of publicity breaching going on in the first place.

Even if the state's laws allow anyone to have a right of publicity, how often does this really get breached? I bet a helluva lot less than the occurrence's of people's affection being alienated or their conversation turning criminal (I love the utterly euphemistic name of that one!).

So I don't think comparing these two torts is comparing apples to apples. Why not compare alienation of affection to battery, or assault, or conversion, or something that's a lot more common?
8.5.2009 4:24pm
I thought that one of the reasons for the decline/abolition of alienation of affection laws was because feminists thought those laws treated wives like just another item of property owned by husbands.

Although, in theory, the suit could be brought by either a wife or a husband, more often than not it was a husband who filed it.
8.5.2009 4:34pm
Eugene Volokh (www):
Early Bird: My point was simply that "there's life in this old tort yet" -- that alienation of affections is not, contrary to many people's suspicions, a relic that has no practical significance today. I certainly am not claiming (nor do I need to claim) that most affairs lead to lawsuits, or that such lawsuits are as common as (say) negligence lawsuits.
8.5.2009 4:36pm
Geriatirc (mail):
Away back in the '40s my father worked in a factory where fellow #1 "alienated the affections" of fellow #2's young wife — and fellow #1 spent much of one long summer bragging about it and loudly rubbing it in the other guy's face. By and by fellow #2 came after #1 with a gun, out on the loading dock. Had him on his knees begging for his life, before he shot him.

The prosecution was for murder, but in the 1940s juries took "alienation of affection" seriously, and let the guy off.

Dad always said f #1 had it coming, rubbing it in like he did.
8.5.2009 4:44pm
Eugene Volokh (www):
Redman: That has been one of the arguments -- but I want my students to ask critically whether that's a sound argument. I think that at the level of abstraction given in your comment, it's not sound, though perhaps it can be refined in a way to make it sound. I should stress that I'm no fan of these torts, but the point is that students need to learn how to criticize them persuasively and precisely.
8.5.2009 4:46pm
Gabriel McCall (mail):
If you want to be able to prosecute marital rape, perhaps you have to give up the presumption of entitlement to the spouse's affections which underlies this tort.
8.5.2009 5:14pm
PatHMV (mail) (www):
At the risk of sounding a suck-up, I think it sounds like a fine syllabus section. As law school exists more to teach people to "think like a lawyer" rather than to impart every single explicit rule of law, it seems a very good issue to discuss in class. It's not so commonplace that everybody in class will have already formed an opinion on it, but it's also not so rare that it truly no longer has practical significance. The torts involved raise issues which relate to many issues on which young students tend to have very strong opinions, and one goal of law school is (or should be) to teach the students how to debate those issues with facts and logic, rather than bluster, emotionalism, and preformed opinions. And, as Eugene suggests, they're racy enough to be interesting, exciting even, and so students may perk up a bit and get involved in the discussion more. I daresay everybody knows somebody who has either cheated on a spouse or boyfriend/girlfriend or been cheated on, so they'll be able to relate the issues to their own experiences.
8.5.2009 5:17pm
R Gould-Saltman (mail):
I'm going to go the other direction, and suggest (based on 30 years of family law practice in a "no fault" state) there's probably an economically rational limit on the "right of publicity" cases which doesn't operate as effectively in "alienation of affection" cases.

If someone's using my image or likeness without my consent, and making money off it, I can, at least in theory, recover the money they're making. If I can't prove it, or I can't collect, or if they're not making money, a sane lawyer will likely discourage me from pursuing a suit, and discourage me successfully.

On the other hand, "alienation of affection", is NOT a topic on which people, particularly potential plaintiffs, tend to be really rational.

I assume that one cannot buy, anywhere in the U.S., a policy of insurance which indemnifies the defendant for the damages. I'm also going to guess that the majority of potential a. of a. defendants are, if not judgment-proof, at least hard collects. Nevertheless, some folks will still file these suits, and pay lawyers to file'em , just to plain old PUNISH the defendant publically, with no particular regard as to whether a dime is ever recovered.
8.5.2009 5:28pm
In Colorado, the tort has not just been abolished. It is a crime to settle such cases without court intervention and a crime to file such cases in court. At the time (the turn of the century), divorce was fault based and provided an exclusive forum in which to litigate the issue. This was a natural corrolary to the usual rule of civil immunity between people who remained spouses. Spouses were entitled to a remedy only if it was an important enough matter to divorce over. Courts didn't want to encourage litigation within intact marriages to adjudicate wealth transfers between families that functioned as single households.

With the possible exception of actions to enforce invalid non-competes and other invalid labor practices (like blacklists) it is the only circumstance where the filing of a case gives rise to not just a Rule 12 dismissal and possibly Rule 11 sanctions, but also criminal sanctions.

Adultery in Colorado was decriminalized at the same time that "no fault" divorce was adopted (following the lead of California while Reagan was Governor). This makes sense and parallels roughly contemporaneous experiments with "no fault" automobile insurance regimes (a Michigan Republican invention IIRC) and the rise of strict liability in tort for defective products (a judicial creation in California).

In theory, the strict liability, no fault partnership theory based system of divorce, by providing a comprehensive remedy allocating property between the parties, rendered the tort-like remedy between between the parties available in fault based divorce obsolete and invoked a res judicata-like bar to suits. Discontinuation of alimony for cohabitation after a divorce (the common norm at first) provided a liquidated damages remedy for post-decree conduct in line with the economic realities involved.

The notion behind no fault divorce was that the harm involved in the suit, in the private investigator activities necessary to determine is a lawsuit was available as a remedy, and in frequent collusion to permit a marriage to be terminated, outweighed the benefits of the wealth transfer involved in litigating it. Fault based divorce had created an incentive to commit adultery precisely so that a divorce could be granted.

Notably, the U.S. Supreme Court recently denied cert. in a case where an alienation of affections verdict was upheld on appeal in state courts.
8.5.2009 6:05pm
CheckEnclosed (mail):
How strictly, in general do Courts require proof of element 3 of this tort? Assuming that the wayward spouse still professes and demonstrates affection does that mean no liability for the putative tortfeasor?
8.5.2009 6:19pm
Ryan (mail) (www):
While I think as a tool to keep students interested, this is a good tool. However I do have reservations considering the state of the profession. I can tell you from personal experience that no one is hiring attorneys without 2 years of experience. With all the financial considerations firms and clients have to make, no one wants to train new attorneys. For new attorneys to be competitive, they must gain the practical experience necessary in law school. I realize this will be a huge change for law schools and the profession, but there are more than a few articles speaking of sweeping changes already occurring in firm corporate structures. The latest is with Cadwalader who put 34 associates on sabbatical and supposedly offered to hire them back as contract attorneys. Maybe with the prospect of not having a few years to be mentored through the profession and therefore needing immediately transferable skills, students will be more interested in the practical aspects of practice.
8.5.2009 6:43pm
In the torts class I took in 1967, these were loftily dismissed as "heart balm suits" and treated as way too old-fashioned for our enlightened age.
8.5.2009 6:59pm
Duncan Frissell (mail):
A good example of statutory restriction of a Common Law tort is the replacement of the employers duty at Common Law to provide a safe workplace with the Workmans (now Workers) Compensation System.
8.5.2009 8:00pm
Also interesting is the test this example provides of the impact of legal system incentives on conduct.

The existence of a right of publicity has a great deal of economic impact on the entertainment industry at a transactional level. The modeling industry would probably collapse without it.

Heart balm suits don't obviously have a similarly great impact on marital fidelity in North Carolina, which is not known for either exceptional fidelity, exceptional rates of infidelity that have created a particular problem, or atypical divorce settlements relative to its comparable neighbors. Indeed, the place where there are arguably different divorce settlements is in New York, which still has fault based divorce, but does not have heart balm suits.

Even in North Carolina, it is fair to assume that the vast majority of cases of marital infidelity do not result in lawsuits. This is the death penalty of the romantic world; a penalty too rarely imposed to make a statistical difference in the mill run of cases where it is available.

Indeed, it is probably safe to guess that heart balm suits in North Carolina have a below average success rate. These suits are a classic example of suits one would suspect are likely to be brought for non-economic reasons as irrational actors. One also suspects that nominal verdicts are fairly common, while large verdicts are fairly rare.

Then again, maybe North Carolina's frequent resort to these suits simply reflects a shortage of drive time DJ talk on local radio stations, bars and Internet access to social networking sites, which is where civilized people resolve their frustrations with such issues at a much lower cost with a much greater likelihood of an emotionally favorable outcome.
8.5.2009 8:01pm
Where'ssldsklsdkl (mail):
Compare the elements of the heartbalm torts with such "property" torts as conversion. The feminists did indeed consider these torts as arising out of old theories that the wife was property of the husband. I gather that courts and legislators also were uncomfortable in delving into these personal issues, especially in an era that had significantly relaxed attitudes toward divorce (e.g., now there were such things as no-fault divorces, which also appealed to feminists - so instead of claiming that you had your life ruined by the interference of another with your marriage, people said "just get a divorce and move on like everyone else"). Alas, there is a case to be made that if you believe that there is intrinsic value in protecting marriage and preventing no-fault interference in relationships by socundrels, and once you stop treating it as a property offense, maybe these heartbalm torts actually could be socially useful.
8.5.2009 9:04pm
It might be useful to discuss how the tort has been adapted to a series of modern problems, and also how attitudes towards the tort shape judge's views of them. I'd include:

Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) Court of Appeals has no authority to overrule decisions of North Carolina Supreme Court and hence had no authority to abolish torts of alienation of affection and criminal conversation. [Note: The Court of Appeals opinion vacated by the Supreme Court gave an extensive summary of the arguments for abolition.]

Hutelmyer v. Cox (N.C. App 1999). Because sexual intercourse standing alone is sufficient evidence of malicious conduct to justify punitive damages in an alienation of affections case, $500,000 compensatory and $500,000 punitive damages award upheld [first million dollar award in NC]. Judge Hunter, dissenting, would limit punitive damages for alienation of affection to cases where defendant flaunted affair or did other conduct beyond affair itself.

Oddo v. Presser (N.C. App. 2003). Compensatory damages for alienation of affections can include loss of income where self-employed plaintiff submits evidence of income loss due to mental anguish, however, evidence of lost income was too speculative to establish claim. Punitive damages of $500,000 were not excessive as a matter of law. $910,000 compensatory award vacated and remanded for new trial on issue of compensatory damages only.

Misenheimer v. Burris, 360 NC 620 (2006). Statute of limitations is tolled until conduct is discovered. The nature of the injury in a criminal conversation tort is a personal injury ("Wounding a man's feelings is as much actual damages as breaking his limb"), and hence discovery rule for personal injury torts applied, further, "Application of the discovery rule to claims for criminal conversation accords with North Carolina's demonstrated interest in protecting the sanctity of marriage and preserving the institution of the family, prevents rewarding deceptive conduct to conceal affairs, and comports with fundamental fairness. Chief Justice Parker, dissenting, opined that the nature of the injury is to the spousal relationship, not to the aggrieved spouse personally, and hence that the discovery rule should not apply.

Fox v. Gibson (N.C. App. 2006) Sending emails from Georgia to plaintiff's spouse in North Carolina is sufficient contacts with North Carolina to support long-arm jurisdiction over defendant in alienation of affections case.

Stann v. Levine 180 N.C. App. 1 (2006) Appeal from dismissal of alienation of affections case dismissed for violations of North Carolina Rules of Appelate Procedure including incorrect type face, incorrect number of lines per page, and failure to summarize grounds for appeal and standards for review as prescribed by rules.

Misenheimer v. Burris (N.C. App. 2007) Trial court did not abuse discretion by permitting limited waiver of clergy-communicant privilege. Because privelege is absolute in North Carolina, court has no discretion to admit testimony beyond scope of waiver. Partiall testimony could be admitted because it was probitive and defendant had other means of establishing

Jones v. Skelley (N.C. App. 2009) In case where Plaintiff alleged defendant had sexual intercourse with spouse while on vacation in North Carolina but parties resided and most of affair was conducted elsewhere, Plaintiff alleged conduct occurring in North Carolina and tending to diminish spouse's affections sufficient to assert North Carolina jurisdiction and survive a motion for summary judgment. Alienation of affections requires proof only of diminution, not elimination, of the spouse's affections.
8.6.2009 12:07am
Note: Although earlier decisions have indeed characterized the right of exclusive sexual intercourse protected by these torts as a chattel property right, the North Carolina Supreme Court's Misenheimer v. Burris decision appears to have recharacterized its nature as injury to the person rather than injury to property.
8.6.2009 12:12am
Tim Benham (mail):
Because sexual intercourse standing alone is sufficient evidence.....

How exactly would you do that?
8.6.2009 8:59am
From your heading, I expected to read a post about how your tort class could cause alienation of affection. I suspect many a law class has caused such alienation. Now that would be an interesting lawsuit.
8.6.2009 9:04am
I would definitely include Ward v. Beaton, 141 N.C. App. 44 (2000). In ward, a husband and wife initiated a divorce and the wife sued a neighbor for alienation of affections and criminal conversation. The only evidence that the husband and the neighbor engaged in sexual intercourse was the husband's own testimony. The spouses testified their marriage had been irretrievably broken. Jury awarded 552,000 in compensatory damages and $43,000 in punitive damages.

Two weeks after the verdict, the spouses dismissed their divorce proceedings indicating they had reconciled, and resumed living together. The defendants appealed on the grounds that the entire lawsuit was essentially fraudulent, that the husband had lured the defendant into compromising situations creating the appearance of an affair, and that the spouses had colluded to misrepresent nonexistent facts on which the verdict was based.

The Court of Appeals held that (1) It does not matter who initiated the relationship so long as there was wrongful conduct on the defendant's part, so defendant's claim that the husband "lured" her does not defeat the cause of action. (2) Although spousal consent is a defense to a cause of action of criminal conversation, such consent must be identified before the judgment.(3) There is no exception to the North Carolina rule that allegations of fraud have to be specially pled before trial in order to be preserved for appeal. (4) Because evidence of sexual intercourse is alone sufficient to establish punitive damages and was supported by the husband's testimony, the jury verdict was supported by the evidence.

The dissent opined that the post-trial events supported a new trial due to extraordinary circumstances.
8.6.2009 12:06pm
Brett Turner (mail):

The move to abolish alienation of affections did not arise because liberal legislatures thought adultery wasn't wrongful. Many states abolished it long before no fault divorce came along. See, e.g., Prosser &Keeton on Torts sec. 124 note 91, citing a bunch of law review articles from the 1930s.

Alienation of affections was abolished because it isn't used to put marriages back together; it has no deterrent effect; it is mostly about personal vindication. As Prosser and Keeton say, "even genuine actions of this type are brought or frequently than not with purely mercenary or vindictive motives." Id. at 929. The likely motivation (and irrational behavior) of the plaintiffs, and not any belief that adultery isn't wrongful, are the core reason why most states have abolished alienation of affections.
8.6.2009 1:24pm
Brett Turner (mail):

As a note on the syllabus, it might be worth briefly mentioning some of the affirmative defenses from Prosser &Keeton on Torts, sec. 124 at 921 et seq., including (1) lack of affection to be alienated, and (2) privilege (e.g., parents are allowed to tell their children they should dump their spouse).
8.6.2009 1:28pm
Arthur Kade (mail):
I don't know, but I'm damn glad to know about Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. Thanks.
8.6.2009 2:00pm
@Tim Benham, in the shower
8.6.2009 5:35pm
wva (mail):
Gene should have said more re "criminal conversation." In alienation of affections cases, it is a sufficient defense that the "cheating" spouse was already estranged from the plaintiff spouse (i.e., there were no "affections" to be "alienated"). In "criminal conversation" cases, it is enough that the defendant was aware the spouse with whom he (or, as determined in North Carolina by judicial decision, she)engaged in sexual intercourse was married.
Most often, the tort is used as leverage, in the following way. The woman (wife)falls in love with another man, she and he wish to marry, but, of course, she must first obtain a divorce to do so. By filing suit against the man whom she now
wishes to marry (for criminal cohabitation), insofar as she certainly does not want the man whom she wants to marry to
be dragged into court, much less to pay "damages" as some jury may award. So much being true, he may use the leverage of his threatened suit to secure more favorable terms from her
on property division, support, or, indeed, child custody. (And, vice-versa, i.e, when he is the "cheating" spouse who now wants a divorce to marry the woman with whom he has developed a relationship and wishes to marry, the wife-mother may gain more in property, support, or child
custody through the leverage she holds pursuant to her
tort claim for "criminal cohabitation."
--It's all quite interesting, don't you think? (I'd be interested what Gene thinks too....)
8.6.2009 7:03pm

Alienation of affections was abolished because it isn't used to put marriages back together; it has no deterrent effect; it is mostly about personal vindication. As Prosser and Keeton say, "even genuine actions of this type are brought or frequently than not with purely mercenary or vindictive motives." Id. at 929. The likely motivation (and irrational behavior) of the plaintiffs, and not any belief that adultery isn't wrongful, are the core reason why most states have abolished alienation of affections.

It would very, very interesting to see what the vindictive-murder rate is in states which do or do not have the tort.

If the murder rate with the tort is lower after controlling for other relevant variables -- that is, if the tort succeeds in channeling human tendencies for vindictiveness from violent channels into non-violent channels -- then a fool or an utter enemy of the good would oppose it.

One might as well oppose hospitals on grounds that their motivation is human sickness. After all, sickness isn't rational behavior either, is it? When human beings get sick, they aren't engaging in intellectual behavior controlled by the will, they are engaging in behavior controlled by their biological nature, that is, irrational behavior. If the law cannot address biological aspects of human behavior when those aspects create different empirical results from what the intellect would prefer, surely laws intended to ameliorate human feelings of sickness are as suspect as laws intended to ameliorate human emotions of vindictiveness.

If people had stopped murdering their spouses' lovers in states abolishing the torts, there would be an argument that there's no need for states to do anything to ameliorate these emotions. But that's hardly the case, is it? Judges are as free as two-year-olds to order whatever they think is icky to stop, and to demand that people not to talk about or attempt to deal with aspects of life they find icky or unpleasant (or "irrational", to use the jargon term). But that that doesn't mean that life's ickynesses will cease to exist.
8.7.2009 1:02am

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