Protecting Marriage Dedicated to the Preservation of the Family 10 Good Reasons to Preserve Meaningful Laws By John Rustin and Jere Z. Royall, J.D.

he family has long been was to protect marriages from intentional the Act was passed, men retained the right recognized as the interference by third parties and to provide to sue for and building block of consequences when interference did occur. , but now the wife had society, but with divorce Although they are usually used together, a right to sue using the same actions. As the rates at record levels in alienation of affections and criminal American court system began to develop its the and conversation are two very distinct causes of own , previous actions for , and the action with different elements and different “abduction” and “enticement” gave way to very definition of historical origins.3 a more modern name—alienation of 7 marriage and family under attack, the Alienation of Affections affections. The tort of alienation of underpinning of the family, namely affections was first recognized in The origin of alienation of affections as marriage, continues to crumble.1 in the 1866 case Heermance v. James.8 a cause of action can be traced to the While most citizens would agree that the Removal of the spouse was no longer English cause of action for abduction. In government should provide public policies required, and consortium came to include a these cases, a husband could recover to preserve and protect marriages and more emotional definition that embraced “love, for the loss of the “society and families, a move is afoot in the North society, companionship and comfort.”9 services” of his wife. The word “consor- Carolina General Assembly to abolish two For a spouse to recover for of our centuries-old laws that are designed alienation of affections, the following to do just that. These tort These laws represent the only elements are required: actions, known as alienation of affections practical remaining legal (1) the parties to the marriage were happily and criminal conversation, erect a wall of barrier against an outside married and that genuine love and protection around marriages from outside affection existed between them; interference and adultery. These laws party who intentionally and represent the only practical remaining legal maliciously intrudes into and (2) that such love and affection was barrier against an outside party who destroys a marriage. alienated and destroyed; and intentionally and maliciously intrudes into (3) that the wrongful and malicious acts of and destroys a marriage and/or who has a tium” was used to describe these legal rights the defendant brought about the loss and sexual relationship with someone else’s 10 of the husband, with respect to his wife, in alienation of such love and affection. husband or wife. the 1620 English case Hyde v. Scyssor.4 The exclusive right of sexual intercourse There have been a number of bills Later English cases required that the wife is not the right protected in this type of case. introduced in the North Carolina General must be physically removed from the home. The actual affection between spouses is the Assembly over the past several years to The husband could recover damages from right protected. In fact, in-laws and religious eliminate these .2 This paper provides anyone who intentionally removed her or organizations have been defendants in an in-depth analysis of the civil actions of “enticed” her to leave, resulting in his loss alienation of affections suits. alienation of affections and criminal of consortium. It was subsequently adopted conversation and points out why the Criminal Conversation in every state in the country except Louisi- preservation of these laws is an important A lawsuit for criminal conversation is a ana.5 North Carolina first recognized the component of preserving and protecting civil claim for adultery. Unlike alienation of action for enticement in the 1849 case of marriage in North Carolina. Much of the affections, this tort action does protect the Barbee v. Armstead.6 discussion herein is based on actual debate exclusive right to marital intercourse Toward the end of the 19th century and in the General Assembly on legislation that between spouses. In early common law, this in the early 20th century, the legal status of would eliminate the alienation of affection tort was known as “.” Seduction women in most states in the country, and criminal conversation torts. required that sexual relations had occurred including North Carolina, began to improve. between the plaintiff’s spouse and the Historical Background The Married Women’s Property Acts gave defendant. There was no requirement for a The original intent of the alienation of women the power to own property, keep physical separation between husband and affections and criminal conversation laws their earnings, and sue and be sued. After wife. The intent behind this tort is to protect 1 family honor, prevent defilement of the involved in an alienation of affections surveyed case law across the nation on these marriage bed and the suspicion that could action will think twice before pursuing a actions. Both encyclopedias report that in be cast upon the legitimacy of the off- relationship with another married person. states that have abolished alienation of spring.11 One thing is certain, if these torts are affections and criminal conversation, no For a plaintiff spouse to recover under abolished, no practical legal deterrent other action resembling these torts may be criminal conversation, the following against such behavior will exist. substituted, because it frustrates the intent of elements are required: 2. Intruding third parties can break up the legislature when they abolished these 17 (1) marriage between the spouses and good marriages. laws. The Ohio Supreme Court stated that the state legislature, “in enacting a statute (2) sexual intercourse between defendant Some proponents for abolishing these abolishing these torts, intended to eliminate and plaintiff’s spouse during the torts argue that good marriages cannot be these common-law actions regardless of the 12 marriage. destroyed by third parties. This denies the title they were given or the severity of the 10 Good Reasons to Keep reality that an individual can be targeted and alleged misconduct.”18 Furthermore, in wooed away from their spouse. It also Poston v. Poston, referenced above, the These Laws ignores the wrongful and malicious acts of The following is an analysis of various North Carolina Court of Appeals also the third party, especially when the third clarified that commercial law does aspects of the alienation of affections and party intentionally pursues the husband or criminal conversation civil actions. not apply to marriage; therefore, actions wife without regard to their marital status. It regarding interference with a contract Throughout the legislative debate on this is in marriages in which love and affection issue, invalid and confusing arguments have cannot be sought as a remedy against exists that an alienation of affection action someone who breaks up a marriage.19 been brought forward by those who propose has validity, as the existence of love and to abolish these valuable torts. In order to affection is a required element of a success- 5. Women and men have equal standing provide clarification on these matters, the ful alienation of affection claim. A marriage under the law to bring these actions, following information has been compiled that lacks love and affection lacks one of the and both women and men file these and confirmed with numerous attorneys critical required elements in proving lawsuits. who practice family law in North Carolina. alienation of affections. Some argue that because these torts find 1. Abolishing alienation of affections will 3. Abolishing criminal conversation will their origin in Elizabethan law and have eliminate the legal deterrent from have the practical effect of legalizing been in place for hundreds of years, they are third party intrusion into marriages. adultery in North Carolina. antiquated. They contend the laws were put into place when women were treated as Alienation of affections is a civil action Criminal conversation is a tort action that allows for a remedy when a marriage is chattels, or property, and such laws do not against a third party for having a sexual reflect current societal standards. This broken up through the actions of someone relationship with another person’s husband outside of the marriage—a third party. This argument is invalid and is an emotional ploy or wife. The plaintiff must prove that the to cloud the issue in an attempt to gain is not an action against the spouse, but husband or wife was married and that the against the third party who was involved in support for the bill. In present-day society, third party had sexual intercourse with the women and men have equal standing under breaking up the marriage. The plaintiff must husband or wife during the marriage.15 This establish all of the following: there was a the law, and both women and men bring is a civil remedy for a crimin al action. these actions. marriage with love and affection; the love While fornication and adultery remain and affection was alienated and destroyed; criminal offenses in North Carolina, such 6. Potential abuse of the law is not a and the wrongful and malicious acts of the actions are rarely, if ever, prosecuted. As a valid reason to abolish these torts. third party produced the loss of love and 13 result, abolishing this tort will have the It has been argued that these torts are affection. According to the General practical effect of legalizing adultery. susceptible to abuse; that they are sought for Assembly analysis of this bill, the tort of 4. No other legal remedy exists for an purposes of blackmail, greed and revenge; alienation of affections is designed to and that they offer a disproportionate “protect the marital right of the affection, aggrieved spouse to seek justice from an individual who has intruded into settlement value for “unscrupulous plain- society, companionship and assistance of tiffs.” Most tort actions are subject to abuse, 14 and broken up their marriage and/or the other spouse.” In other words, this tort and even if such abuse occasionally exists, is designed to protect marriages from third who has had a sexual relationship with their husband or wife. the appropriate remedy is not to abolish the party intrusion and to create accountability tort actions, but to discipline the lawyers. and penalties for third parties who pursue a It has been suggested that the tort action Civil Procedure Rule 11 holds lawyers relationship with a married person and of intentional infliction of emotional distress liable for bringing lawsuits that are not well alienate the affections of the married person will be available to the aggrieved spouse in grounded or are brought for any improper from their spouse. Some argue that there is the absence of the torts of alienation of purpose.20 Because alienation of affections no way to measure how strong a deterrent affections and criminal conversation. This is is difficult to prove, an innocent party has this law is—the same could be argued for not the case. The North Carolina Court of little to fear from the threat of such action. If the death penalty. Jury verdicts in favor of Appeals has found that adultery, “does not it cannot be proven that love and affection aggrieved spouses over the past several the extreme and outrageous existed, then the plaintiff has no case. years have provided continued publicity and conduct which is essential to this cause of Furthermore, if it cannot be proven that the awareness of the law. In addition to the action [intentional infliction of emotional defendant’s relationship with the married 16 affects this may have on people who are not distress].” Furthermore, the legal encyclo- party resulted in the loss of that spouse’s involved in the cases, it is reasonable to pedias, American Jurisprudence and love and affection for their husband or wife, expect that an individual who has been American Law Reports Digest, have the plaintiff has no case. In criminal 2 conversation, if the defendant did not have Only if the wrongdoing husband or wife remember that these actions are not brought sexual intercourse with someone else’s and the third party have maintained an against the spouse, but against the outside husband or wife, then they have nothing to extramarital relationship after the marriage party that interfered with the marriage. At fear. As for “unscrupulous” plaintiffs, it is was destroyed could the aggrieved spouse the point when these actions are brought, important to remember that the plaintiffs in conceivably use these torts as leverage in an most marriages have been destroyed and these cases are spouses who have been equitable distribution, alimony and child significant damage to the children already wronged. These individuals are suing a third support case. This is so because these has been done. Instead of experiencing party who engaged in a wrongful and actions are brought against the third party additional harm, children can learn a malicious action that resulted in the breakup and not the wrongdoing spouse. If a valuable life lesson in seeing how to of their marriage or to extramarital sexual relationship between the third party and the respond in a fair, legal and ethical manner to acts that defiled their marriage. wrongdoing husband or wife no longer someone who has harmed them. 7. Lawmakers should not abolish these exists, the effect of suing the third party 10. Lawmakers should protect and laws in order to provide immunity for would be of no consequence to the wrong- defend marriages, not contribute to the wealthy. doing husband or wife. In other words, if an the breakup of the family. extramarital relationship no longer exists, Proponents of abolishing these laws the aggrieved spouse would have no avenue Some have argued that these torts allow argue that these cases are costly to defend; in which to apply leverage to their husband a wronged spouse to shift all the blame for that wealthy people are the targets of these or wife by suing the third party. If an the breakup of a marriage or a spouse’s actions; and that there is no good way to to the third party. To the contrary, measure damages. Again, these issues apply the existence of these laws allows for all the to many tort cases and are not valid reasons For hundreds of years in responsible parties to be held accountable for doing away with the laws. These cases North Carolina, marriage has for their actions. The real situs of responsi- are typically not contingency cases, and bility lies both with the guilty spouse and they are costly for the plaintiff to bring, as been viewed as sacred, valued, the third party. If there is a resulting well. Whether a defendant has any assets is and worthy of protection. By divorce, the guilty spouse faces accountabil- a consideration in any tort action. These abolishing these two laws, the ity for their actions during equitable laws should not be abolished simply to State’s policy will shift distribution, alimony, child support, and protect the wealthy and provide them child custody proceedings. These torts make immunity from the consequences of their dramatically away from this it possible for the third party to be held wrongful acts. The difficulty of measuring principle to a position that responsible and accountable for their compensatory and punitive damages is does nothing to protect actions. If these torts are abolished, there common with many tort actions but is not a would be no practical restraint or legal reason for eliminating a legal remedy when marriages from third party barrier against a third party intruding into a someone has been wronged. intrusion. marriage, breaking up the marriage and 8. These actions are brought against a having a sexual relationship with someone’s third party and are completely extramarital relationship continued after the husband or wife. separate from equitable distribution, marriage was destroyed, however, even “Complete Defense” Amendment alimony, and child support. greater evidence exists that the affections of Another matter worth noting is an Some have argued that alienation of the husband or wife were alienated and attempt to provide a defense to an alienation affections and criminal conversation cases destroyed by the third party. Any other of affections action if the wayward spouse are brought in a strategic manner to create argument to abolish these torts because of consented to having their affection alien- leverage when dealing with equitable their coercive use is an argument to protect ated. An amendment offered by Sen. Frank distribution, alimony and child support the guilty from being responsible for their Ballance (D-Warren) during debate on the during a divorce proceeding. Alienation of actions—actions that are not only destruc- Senate floor in the 2001 session proposed to affections and criminal conversation actions tive to families, but to society as a whole. create a “complete defense to the common are totally separate legal actions from 9. These torts support and protect law cause of action for alienation of matters in a divorce proceeding. Unlike families and children. affections” if “the spouse whose affections were allegedly alienated consented to the equitable distribution, alimony and child Supporters of legislation to eliminate conduct giving rise to the cause of action.”21 support, alienation of affection and criminal these torts argue that these lawsuits are In other words, if the husband or wife who conversation actions are brought against the harmful to children and create higher levels was involved in the extramarital relationship third party, not the plaintiff’s spouse. of animosity between the children’s parents. consented to being in the relationship, then Because these are totally separate actions Nothing could be farther from the truth. the aggrieved spouse would have no case from equitable distribution, alimony and These tort actions are designed to deter against the third party. This amendment child support, the outcome of an alienation interference in marriages and adultery in the would effectively abolish the alienation of of affections or criminal conversation case first place and to protect marriages from the affections tort action, because in practically has no bearing on these other matters, and devastation of divorce. There are few things any case in which this action could be vice versa. more important to children than a stable brought against a third party, the husband or As mentioned earlier, if the action of home and family, and building a protective wife whose affections were alienated would bringing one of these cases is not well wall around marriages through the mainte- have consented to be in the relationship. If grounded or is for any improper purpose, nance of these laws helps to support the they did not, the third party would likely the plaintiff’s attorney could be subject to sanctity of the family. It is important to disciplinary action under Rule 11. face charges of kidnapping or rape. This 3 amendment was defeated on the Senate Endnotes floor by a 21-24 vote. 1. Fagan, Patrick F. and Robert Rector. “The Effects of Divorce on America.” Conclusion The Heritage Foundation. June 5, 2000. For hundreds of years in North Carolina, See also: North Carolina Vital Statistics, marriage has been viewed as sacred, valued, Volume 1: Population, Births, Deaths, and worthy of protection. By abolishing Marriages, Divorces available online at these two laws, the State’s policy will shift http://www.schs.state.nc.us/SCHS/ dramatically away from this principle to a healthstats/. 2. North Carolina General Assembly. HB position that does nothing to protect 576. Abolish Alienation of Affection/ marriages from third party intrusion. No Criminal Conversation. 2001. See also longer will an aggrieved spouse have any HB 493. Alienation of Affection/ legal recourse against a third party who, Criminal Conversation. 1999. through wrongful and malicious acts, breaks 3. 41 Am. Jur. 2d, Husband and Wife, ¤ up their marriage. No longer could a third 269, p. 182. party be held accountable for their wrongful 4. Hyde v. Scyssor, 79 Eng. Rep. At 462 (England 1620). and malicious acts of interference in a 5. Moullin v. Montleone, 115 S. 447 marriage and for committing the act of ( 1927). adultery. 6. Barbee v. Armstead, 32 N.C. (10 Ired.) The State’s policy toward third party 530. intrusion into marriages should remain 7. James Leonard, Cannon v. Miller: The absolutely clear—that such interference will Brief Death of Alienation of Affections and Criminal Conversation in North not be tolerated, and if an individual does Carolina, 63 N.C. L. REV. 1320 (1985). pursue someone who is married and 8. Heermance v. James, 47 Barb. 120 wrongfully and maliciously breaks up their (N.Y. App. Div. 1866). marriage and/or commits adultery with 9. W. PROSSER & W. KEETON, The someone else’s husband or wife, they can be Law of Torts ¤ 124, at 929 (5th ed. held accountable and liable for their 1984). actions. These valuable laws of alienation of 10. Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E. 2d 234, 237 (1996). affection and criminal conversation should 11. W. PROSSER & W. KEETON, The remain intact and any effort to abolish them Law of Torts ¤ 124, at 929 (5th ed. should be defeated. 1984). 12. Coachman v. Gould, 122 N.C. App. 443, John Rustin is Director of Government 446, 470 S.E. 2d 560, 563 (1996). Relations and Jere Z. Royall is the staff 13. Brown v. Hurley, 124 N.C. App. 377, attorney for the North Carolina Family Policy 380, 477 S.E. 2d 234, 237 (1996). Council. 14. Legislative Bill Analysis of HB 576 presented to House Judiciary 1 Commit-  tee, April 10, 2001. Copyright 2002. North Carolina Family 15. Coachman v. Gould, 122 N.C. App. 443, Policy Council. All Rights Reserved. 446, 470 S.E. 2d 560, 563 (1996). 16. Poston v. Poston, 112 N.C. App. 849, 851, 436 S.E. 2d 854, 856 (1993). 17. 41 Am Jur 2d section 271; ALR Digest: Husband and Wife sections 138-145. 18. Strock v. Pressnell, 527 NE2d 1235 (1988). 19. Poston v. Poston, 112 N.C. App. 849, 851, 436 S.E. 2d 854, 856 (1993). 20. N.C. General Statutes ¤ 1A-1, Rule 11(a). 21. North Carolina General Assembly. Amendment H576-ASV-72[v.3] to HB 576. September 4, 2001.

Organized in 1992, the North Carolina Family Policy Council is a nonpartisan, nonprofit, research and education organization. Our goal is to serve as a voice for families and traditional family values in the public policy arena. We are supported solely by private contributions which are tax deductible as provided by law. Our mailing address is P.O. Box 20607, Raleigh, NC 27619. Phone: (919) 807-0800. Fax: (919) 807-0900. Findings is a publication of the North Carolina Family Policy Council which is intended to communicate research findings and perspectives on public policy issues that affect the family. Nothing written here should be construed as necessarily reflecting the views of the North Carolina Family Policy Council or as an attempt to aid or hinder the passage of any bill before Congress or the North Carolina General Assembly. Printed June 2002.

4