Nebraska Law Review Volume 58 | Issue 2 Article 10 1978 The orT t of Criminal Conversation in Nebraska: Kremer v. Black, 201 Neb. 467, 268 N.W.2d 582 (1978) Donald D. Schneider University of Nebraska College of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Donald D. Schneider, The Tort of Criminal Conversation in Nebraska: Kremer v. Black, 201 Neb. 467, 268 N.W.2d 582 (1978), 58 Neb. L. Rev. 595 (1979) Available at: https://digitalcommons.unl.edu/nlr/vol58/iss2/10 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Note The Tort of Criminal Conversation in Nebraska Kremer v. Black, 201 Neb. 467, 268 N.W.2d 582 (1978). I. INTRODUCTION Traditionally, criminal conversation was a husband's tort action against a man who had engaged in sexual intercourse with the hus- band's wife. Thewife was not a party to the suit. It was considered the civil remedy for the crime of adultery,' although conviction of the crime was not necessary to recovery for the tort. It is a cause of action distinct from the other torts involving intentional interfer- ence with family relations. 2 The original basis of the tort was the 1. Oliver v. Oliver, 159 Neb. 218, 225, 66 N.W.2d 420, 424 (1954). The most com- plete history is found in Lippman, The Breakdown of Consortium, 30 CoL.u. L. REV. 651 (1930). One author, relying upon Lippman, wrote: The earliest origins of tort law dealing with interference with fam- ily relations and particularly the tort of criminal conversation, may date back as far as the ancient Teutons who took such a harsh view of adultery that their social customs permitted a husband to kill or castrate his wife's lover if he came upon them in flagrante delicto; this later evolved into a right in the husband to abandon his spouse to the lover and demand monetary compensation as well as a new wife.... With the advent of Christianity and its disapproval of di- vorce, the husband's rights vis a vis the martial [sic] interloper be- came simply the entitlement to monetary damages. Note, The Tort of Criminal Conversation is Abolished in Pennsylvania, 22 VnL L REv. 1253, 1253-54 n.5 (1977) (citations omitted). 2. Alienation of affection and enticement are two other torts involving inten- tional interference with the family relationship. Alienation of affection in- volves purposely depriving one spouse of the aid, comfort, assistance, and society of the other. Oliver v. Oliver, 159 Neb. 218, 66 N.W.2d 420 (1954). En- ticement consists of a third person purposely inducing a married person to separate from and leave his or her spouse. RESTATEMENT (SEcoND) OF ToRTS § 684 (1977). Enticement, alienation of affection, and criminal conversation are separate torts, and may exist independent of each other. Despite the dis- tinctions drawn by courts, Prosser states there is "no good reason" to distin- guish the three torts, since each involves an interference with the same relational interest, i.e., marriage. W. PROSSER, ToRTS § 124 at 876 (4th ed. 1971). However, a significant practical difference is that alienation of affection and enticement are intentional torts requiring a showing of intent and causa- tion; intent would include knowledge that the person was married. RESTATE- NEBRASKA LAW REVIEW [VOL. 58:595 property interest of the husband in his wife,3 but eventually it was perceived that the cause of action was grounded in a right of con- sortium.4 Under modern law a wife has the same standing to bring suit for criminal conversation as a husband.5 Criminal conversation has assumed the character of a strict lia- bility tort. Plaintiff need only show marriage and an act of sexual intercourse performed without the consent of the plaintiff. De- fendant cannot assert lack of intent, or lack of knowledge that the person was married.6 Once the prima facie case is established general damages are presumed, although evidence such as the spouse's prior unfaithfulness and aggressiveness or the plaintiff's own unchaste character or cruelty can be introduced to mitigate damages.7 In Nebraska the cause of action for criminal conversa- tion has been routinely upheld for over seventy-eight years,8 al- though elsewhere it has been under increasing attack as an anachronism riddled with abuse and injustice.9 In the recent case MENT (SECOND) OF TORTS § 683, Comments g, i at 480-81; § 684, Comments f-g at 483-84 (1977). Criminal conversation does not require such a showing. See notes 6-7 & accompanying text infra. 3. Lippman, supra note 1, at 655-56. 4. Id. at 651-52. The term consortium is widely used, but is without a precise meaning. Nature of marital interests. The legally protected marital interests of one spouse include the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment of them, services in the home and support. The word "consortium" is frequently employed in judicial opin- ions to indicate any or all of those interests of the husband or wife in the marriage relation that receive legal protection by rules of law. The word is therefore ambiguous and is not used in this Restate- ment. RESTATEMENT (SECOND) OF TORTS § 683, Comment c at 478 (1977). 5. White v. Longo, 190 Neb. 703,212 N.W.2d 84 (1973); Karchner v. Mumie, 398 Pa. 13, 156 A.2d 537 (1959). 6. RESTATEMENT (SECOND) OF TORTS § 685, Comments d, f-g at 485-86 (1977). 7. Comment, Criminal Conversation: Civil Action for Adultery, 25 BAYLOR L. REv. 495, 497 (1973). 8. Breiner v. Olson, 195 Neb. 120, 237 N.W.2d 118 (1975); White v. Longo, 190 Neb. 703, 212 N.W.2d 84 (1973); Oliver v. Oliver, 159 Neb. 218, 66 N.W.2d 420 (1954); Klinginsmith v. Allen, 155 Neb. 674,53 N.W.2d 77 (1952); Cantin v. Howard, 131 Neb. 192, 267 N.W. 423 (1936); Baker v. Westing, 102 Neb. 840, 170 N.W. 168 (1918); Wheeler v. Abbott, 89 Neb. 455, 131 N.W. 942 (1911); Smith v. Meyers, 52 Neb. 70, 71 N.W. 1006 (1897). 9. See Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976); Comment, supra note 7; Feinsinger, LegislativeAttack on "HeartBalm," 33 MICH. L. REv. 979 (1935). Prosser has written: Those actions for interference with domestic relations which carry an accusation of sexual misbehavior-that is to say, criminal conver- sation, seduction, and to some extent alienation of affections-have been peculiarly susceptible to abuse. Together with the action for breach of promise to marry, it is notorious that they have afforded a 1979] CRIMINAL CONVERSATION of Kremer v. Black'o the Nebraska Supreme Court again affirmed the cause of action for criminal conversation without modification, but only over a vigorous dissent which charged that the traditional rules governing this tort need to be changed." This note will discuss the Kremer decision. Although it may have been appropriate for the court to preserve a cause of action for criminal conversation in Nebraska,12 the majority deferred to the legislature and failed to address or rebut the significant criti-13 cism of certain traditional rules governing the cause of action. Not discussed in either opinion was the recently enacted Nebraska Criminal Code, which reflects important changes in public policy regarding family and sexual matters and which, while recognizing the important social interest involved, arguably supports modifica- tions in the cause of action for criminal conversation.' 4 While criminal conversation has been challenged as a violation of a con- stitutionally protected right to privacy,' 5 and as a violation of the fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement. There is good reason to believe that even genuine actions of this type are brought more frequently than not with purely mercenary or vin- dictive motives; that it is impossible to compensate for such damage with what has derisively been called "heart balm;" that people of any decent instincts do not bring an action which merely adds to the fam- ily disgrace; and that no preventive purpose is served, since such torts seldom are committed with deliberate plan. Added to this is perhaps an increasing notion of personal or even sexual freedom on the part of women, and the feeling, illustrated by the current attitude toward divorce, that a home so easily broken up is not worth main- taining. W. PnosSER, supra note 2, at 887 (footnotes omitted). Many of Prosser's criti- cisms are challenged or rebutted in Note, The Casefor Retention of Causes of Action for Intentional Interference With the Marital Relationship,48 NOTRE DAME LAw. 426 (1972). 10. 201 Neb. 467, 268 N.W.2d 582 (1978). 11. Id. at 473-79, 268 N.W.2d at 585-88 (McCown, J., dissenting). 12. See notes 53-57 & accompanying text infra; note 76 & accompanying text infra. 13. See notes 37-52 & accompanying text infra. 14. See notes.58-75 & accompanying text infra. 15. For a discussion of this issue, which was suggested in a concurring opinion in Fadgen v. Lenkner, 469 Pa. 272, 283-84, 365 A.2d 147, 152-53 (1976) (Manderino, J., concurring), see Note, supra note 1, at 1262-64. The author found little sup- port for the proposition that a right of privacy included the right to commit adultery.