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Monday, June 16, 2014

North Carolina Judge Rules that Alienation of Affections Law is Unconstitutional

Through Howard Bashman's How Appealing blog, I learned of this article in the Winston-Salem Journal on a recent North Carolina Superior Court decision. The article begins:

North Carolina’s law allowing people to sue their spouse’s lover and collect damages violates constitutional protections on free speech and free expression and serves no legitimate state interest, a Forsyth County judge ruled Wednesday in dismissing a lawsuit.

It marks the first time that a Superior Court judge in North Carolina has directly challenged the constitutionality of the state’s alienation of affection and criminal conversation laws, a legal expert in family law at Wake Forest University said.
The article notes that only six states, including North Carolina, allow for alienation of affections lawsuits. I have written previously about North Carolina's law on alienation of affections here, and on Illinois's similar law here.

While I unfortunately cannot find a version of the Superior Court's ruling [UPDATE: the link to the decision is at the end of this post], the Journal quotes what seems to be the crux of the decision:

Judge John O. Craig said in a written order that the state’s alienation of affection laws infringed on people’s rights under the First and 14 th amendments of the U.S. Constitution. He rejected arguments that the state had a legitimate interest in protecting the sanctity of marriage and argued that people use these laws to blackmail their spouses.
“Here, no compelling state interest exists in protecting the marital relationship that can justify AA’s (alienation of affection) suppression of a right as fundamental as free speech,” Craig writes in his order. “Moreover, assuming that a compelling state interest might exist, AA’s practical effect is to chill by speech by not setting clear limits on what speech is actionable and what is protected.”
I think that Judge Craig's decision is correct as far as the alienation of affections cause of action is concerned, but do not think that the same logic applies to the tort of criminal conversation. In this post, I will first explain the legal background of North Carolina's alienation of affections and criminal conversation torts. I will then explain why a First Amendment challenge to the alienation of affections cause of action may succeed, but why a similar challenge to a criminal conversation cause of action will probably fail.

North Carolina's Law of Alienation of Affections and Criminal Conversation

While the torts of alienation of affections and criminal conversation are similar, they are worth distinguishing in light of First Amendment considerations.

Alienation of Affections

In the 2006 decision, McCutchen v. McCutchen, the North Carolina Supreme Court described the elements of an alienation of affections claim:
To establish a common law claim for alienation, a plaintiff must prove “ ‘(1) [t]hat [she and her husband] were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; [and] (3) that the wrongful and malicious acts of the defendant[] produced and brought about the loss and alienation of such love and affection.’” (alterations in original)
The North Carolina Supreme Court has upheld the law in the face of a challenge to the law on public policy grounds. In Cannon v. Miller (N.C. Ct. App. 1984), the North Carolina Court of Appeals provided a thorough summary of the tort's origins in the archaic notion that wives are the property of their husbands, and husbands therefore had the right to sue those who interfered with their wives' affections. Despite developments in the law that permitted women to file alienation of affections lawsuits, the court noted that there was an "overwhelming" trend against the tort -- with many states abolishing the tort on the grounds that the notion of a spouse's affection as property was fatally outdated. The court ultimately concluded:

A review of the historical and theoretical bases of the actions, and the largely unsuccessful attempts to articulate a convincing modern basis for the “heart balm” torts lead us to conclude that there is no continuing legal basis for the retention of these tort actions today. They protect no interests and further no public policies not better served by other means, and the potentialities for abuse posed by their existence outweighs any possible benefits to be obtained by their retention in contemporary society. While the historical remedies allowed by these causes of action have undergone some progressive changes through the years, the actions remain permeated with the uncultivated and obsolete ideas which marked their origin. We hold that the causes of actions of alienation of affections and criminal conversation are hereby abolished in this jurisdiction.
On appeal, the North Carolina Supreme Court quickly dismissed the court of appeal's extensive discussion, criticism, and ultimate dismantlement of the alienation of affections cause of action. In a one-page order, the Court held:

It appearing that the panel of Judges of the Court of Appeals to which this case was assigned has acted under a misapprehension of its authority to overrule decisions of the Supreme Court of North Carolina and its responsibility to follow those decisions, until otherwise ordered by the Supreme Court. 
It is therefore ordered that the petition for discretionary review is allowed for the sole purpose of vacating the decision of the Court of Appeals purporting to abolish the causes of action for Alienation of Affections and Criminal Conversation.
Thus, despite the Court of Appeals extremely thorough attempt to abolish alienation of affections, the tort remains available for litigants in North Carolina. Eugene Volokh noted in 2009 that hundreds of these cases are filed each year. For further discussion of North Carolina's tort of alienation of affection and the Supreme Court's continued willingness to preserve the cause of action, I recommend Sharon Everett's article, The Law of Alienation of Affections After McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got Harder to Do, (85 N.C. L. Rev. 1761 (2007)) (unfortunately, I could not find a publicly-available version of the article).

Criminal Conversation

The tort of criminal conversation is similar to the alienation of affections tort, but is arguably easier to prove, albeit in a narrower range of factual circumstances. In Jones v. Skelley, the North Carolina Court of Appeals outlined the criminal conversation cause of action:

“To withstand [a] defendant's motion for summary judgment on [a] claim of criminal conversation, plaintiff must present evidence demonstrating: ‘(1) marriage between the spouses and (2) sexual intercourse between defendant and plaintiff's spouse during the marriage.’” In addition, a plaintiff must also show “that the tortious injuries ... [the] criminal conversation, occurred in North Carolina before North Carolina substantive law can be applied.” Consequently, a plaintiff must show that a defendant engaged in sexual intercourse with her spouse in North Carolina. North Carolina law is clear that a claim for criminal conversation can be based solely on post-separation conduct. . . . Finally, a plaintiff may recover for criminal conversation where the evidence merely shows a single encounter of sexual intercourse between a defendant and her spouse. (citations omitted).
Unlike plaintiffs suing for alienation of affections, a plaintiff suing for criminal conversation does not need to prove that the defendant acted wrongfully or maliciously. While I cannot find any cases that reach holdings on the issue with precedential authority, it seems that a defendant does not even need to know that the person he or she has sex with is married in order to be found liable for criminal conversation. (See Misenheimer v. Burris, 637 S.E. 2d 173, 177 (N.C. 2006) (Parker, C.J. dissenting).

I note that criminal conversation is arguably easier to prove than alienation of affections because a plaintiff does not need to show any malice or otherwise wrongful behavior on the part of the defendant, and a plaintiff only needs to show one instance of sexual intercourse in order to have a cause of action.

Will a First Amendment Challenge to Alienation of Affections and Criminal Conversation Torts Succeed?

In Cannon, the North Carolina Supreme Court  rejected policy challenges to the law of alienation of affections and criminal conversation. Even though the North Carolina Court of Appeals gave exhaustive treatment to the tort's outdated basis and the harm that it causes to litigants, the North Carolina Supreme Court has made it clear that overruling the law of alienation of affections is the job for the North Carolina Supreme Court alone.

But this most recent case in the North Carolina Superior Court involves a First and Fourteenth Amendment challenge to North Carolina's law of alienation of affections and criminal conversation. While Judge Craig did refer to the outdated nature of the tort, and the previously-rejected public policy reasons against the tort, the crux of his decision seems to rest on constitutional concerns.

As far as alienation of affections is concerned, there may indeed be a viable First Amendment argument against the law. While alienation of affections actions typically involve situations where the plaintiff spouse sues a defendant for breaking up his or her marriage due to the defendant's sexual relations with the other spouse, the alienation of affections action applies in other situations as well. All the plaintiff needs to show is that the defendant undertook some "wrongful" or "malicious" acts.

For example, this may include lying about the plaintiff -- I may falsely say to a married person that his wife is a criminal, thereby inducing him to leave her. Because this statement is false, and probably defamatory, it would probably a "wrongful" act on my part, and could open me up to an alienation of affections lawsuit by my friend's wife. Notably, in this hypothetical scenario, I would not be engaging in protected speech, since my false statement that my friend's wife had committed a crime would probably be unprotected defamation.

But what if I were to hate my friend's wife, and constantly talk down about her and emphasize her (truthful) flaws during conversations with my friend? I might, for example, constantly complain that she is too controlling, too argumentative, or (to make my speech even more appealing to First Amendment values) too much of a Republican or Democrat. After a while, I might end up convincing my friend that he should divorce his wife. I have probably acted maliciously -- for purposes of this hypothetical, I hate my friend's wife and I would like nothing more than to drive my friend away from her. But I have not engaged in any unprotected speech, since my nagging focuses on truthful characteristics of my friend's wife which I find objectionable.

In the second scenario, my speech would most likely be protected statements of opinion. Because the alienation of affections statute would make that protected speech actionable, it may be an unconstitutionally overbroad restriction of speech. For that reason, I think that there is a strong basis for Judge Craig's ruling on the unconstitutionality of alienation of affections.

But I do not think that this logic applies to the tort of criminal conversation. Criminal conversation is restricted only to situations where the defendant has had sex with the plaintiff's spouse. Unlike alienation of affections, which may cover situations where a defendant induces the plaintiff's spouse to leave through non-sexual actions, the tort of criminal conversation is much clearer in defining what activity is tortious. The tort of criminal conversation would almost certainly not seem to apply to instances of protected speech in the way the alienation of affections tort does.

In conclusion, while it seems that Judge Craig may be correct to conclude that the tort of alienation of affections violates the First Amendment, the logic of his ruling does not apply to criminal conversation. It will be interesting to see if this distinction comes up on appeal (if the case is appealed) and whether the North Carolina Supreme Court will take this challenge seriously.


Via Eugene Volokh's post on this case at the Volokh Conspiracy, here is a link to the decision in the North Carolina Superior Court case (which is Rothrock v. Cooke). In that post, Volokh concludes that the ruling is probably wrong. I will be busy for most of the day with bar prep class and homework, but I will try to have another post up soon addressing Volokh's concerns with the ruling.


  1. It seems very clear to me that the strict liability aspect of the tort of criminal conversation has constitutional issues in light of Lawrence.v. Texas, 539 U.S. 558 (2003), which basically held that it is unconstitutional to ban sexual activity between consenting adults that is neither adulterous nor commercial. Imposing tort liability for what one party may have sincerely, in good faith, and reasonably believed to have been just such sexual activity is constitutionally problematic. At a minimum, I think, it is necessary to impose some intent requirement, even if it is a mere negligence threshold, on civil liability for what would otherwise be constitutionally protected actions.

    It is similarly hard to see why, on a facial basis, the elements of an alienation of affections tort are unconstitutional to any greater degree than, for example, the clearly constitutional tort of intentional interference with contract. The constitution may place bounds upon what kind of conduct is wrongful and malicious, But, I'm not even sure that your hypothetical crosses those boundaries. Suppose that "wrongful" conduct is interpreted to apply only to speech not protected by the First Amendment (like defamatory lies, or quid pro quo sexual harassment from a supervisor at work, or the classic hypothetical of the evil twin who lies and says that he is the woman's spouse when he isn't). I'm not convinced that the "malicious intent" prong isn't enough to justify tort liability under the constitution in other cases. I agree that, in the absence of a malicious intent, the First Amendment would bar an action because you "constantly talk down about her and emphasize her (truthful) flaws during conversations with my friend? I might, for example, constantly complain that she is too controlling, too argumentative, or (to make my speech even more appealing to First Amendment values) too much of a Republican or Democrat." But, when this otherwise First Amendment protected speech is part of a larger plan or scheme to break up a currently happy marriage that is motivated by your personal desire to harm the wife because you hate her, the case is not so clear. You are actively inducing and encouraging someone to breach binding legal obligations to another person that you know to exist and while we privilege all sorts of motives (the competitor's privilege in the intentional interference with contract tort, the privilege to evangelize someone to your religion if you are not a state actor, the privilege to make whistle blowing reports that violate firm policy, etc.) it is hard to make a case for an otherwise unjustified malicious hate of someone else.

    The lurking and more serious issue in the case of both torts, away from the core conduct that they prohibit, is whether there is a legitimate state interest in imposing punitive sanctions and compensatory damage awards on people who intentionally interfere with a marital relationship. History and precedent say "yes". Adultery was a constitutional crime (indeed a felony) in most of the U.S. into the 1960s and 1970s, long after any relevant constitutional provisions were enacted, and remains a crime for people in military service that has survived constitutional challenges so far. Indeed, so far as I know, there is not even a constitutional right to obtain a divorce for any reason whatsoever, although there is a constitutional right to relocate to another state where you can obtain one.

    Perhaps the best argument under the First Amendment focuses not on the defendant, but on the married person whose affections were alienated, or with whom a criminal conservation took place (the "husband" in your examples in the original post). Reading a freedom of conscience and expression into the First Amendment, which isn't a big stretch, might very well include the right to express the fact that you no longer love your spouse and now love someone else.

    1. You raise a number of good points, and I think your discussion about intentional interference with contract is an effective counter-analogy. Thank you for your reply!

      While I don't think that the tort of criminal conversation runs into the same First Amendment problems as alienation of affections, I agree with you that the tort would run into problems under Lawrence v. Texas. Once I read the text of the opinion itself, it looks like the judge made that point in addition to his First Amendment points, so this case will be worth watching in regards to this argument as well as the First Amendment argument.

      As for your argument that analogizes alienation of affections to intentional interference of contracts and that protected speech may be part of a broader scheme, I think that this is one of the better arguments in favor of refusing to apply First Amendment protection since this speech may be unprotected.

      But I think that the marriage situation may complicate the analogy to intentional interference with contract. While the government may rightfully pass a law that makes tortious the intentional interference with existing contracts, my understanding is that courts are less willing to apply the law of contracts to contracts of marriage on public policy ground. And while interference with contracts is a tort law, rather than contract law matter, I think that this same concern may spill over into the area of tortious interference with marriage contracts. I also think that this concern would be warranted -- while interference with contracts can be narrowed by a number of justifications or defenses, crafting similar defenses into the alienation of affections tort would require the courts to get closely involved with the dynamics of marriage and communication regarding marriage. For instance, would my constant talking down about my friend's wife be protected if I am doing so out of concern for my friend, who I don't think should be married to such an awful person, or out of pure dislike for his wife, which -- as you mention -- seems harder to justify?

      And finally, regarding your discussion of adultery, I agree that there is precedent for finding a legitimate government interest in regulating adulterous conduct, and this is one of Volokh's main lines of criticism as well. As for my discussion here, while I think that there are First Amendment issues with alienation of affections torts, which can certainly apply to non-sexual conduct, I am less willing to make the same argument against adultery statutes. While I think that laws criminalizing or permitting torts based on adultery are a bad idea, I am not so sure that they are unconstitutional.