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.
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.
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).
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.