Posted by Eugene Volokh:
Alienation of Affections:
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236791774
[1]Maggie Gallagher, blogging at National Review Online's The Corner,
suggests (more or less) a revival of the tort of alienation of
affections, which has been abolished in the vast majority of states:
An updated tort of adultery could look something like the document
below the fold. This tort (drafted for Minnesota, don't ask me why)
could be either expanded to include "commerical enterprises that
intentionally and explicitly attempt to profit from acts of
adultery," or we could choose to limit it to commerical
enterprises. Such a tort would not prevent websites from
facilitating hookups that include adulterous ones. It would prevent
them from explicitly incorporating adultery into their advertising
plan.
� DRAFT �
Minn. Stats. sec. 517.23. Intentional interference with marriage.
A person is liable for damages to a spouse for intentional
interference with the spouse�s marriage [marital relationship] that
causes injury to the spouse. An act of adultery between the
defendant and the spouse of the plaintiff when the defendant knew
or should have known that the plaintiff�s spouse was married shall
constitute proof of intentional interference with the plaintiff�s
marriage. [Damages awarded pursuant to this statute shall not
exceed $500,000. This action shall be instituted within two years
of the discovery of the adultery.]
([2]Show the commentary that accompanies the proposal.)
COMMENTARY
(a) This proposed new tort reflects the policy articulated in
Minnesota Const., art. I, sec. 8: �Every person is entitled to a
certain remedy in the laws for all injuries or wrongs which he may
receive....� Allen v. Pioneer Press Co., 40 Minn. 117, 122, 41 N.W.
936 (1889) (constitutional section is merely declaratory of general
fundamental principles and leaves to legislature a wide range of
discretion). It resembles the widely recognized action of tortious
interference with contract, the contract in this case being the
contract of marriage. Despite some similarities between this new tort
and the common law actions for alienation of affections and criminal
conversation, there are distinct differences: this action is much
narrower in scope and explicitly provides in the statute for proof of
what constitutes intention and interference. See Lockwood v. L, 67
Minn. 476, 70 N.W. 784 (1889).
(b) Intentional interference with a marriage simply requires proof
that the act of adultery, which constitutes sexual infidelity and
breach of the marriage �contract,� occurred at or after the defendant
has or should have knowledge that the person with whom he or she is
having sexual relations is married.
(c) Proof of interference in a marriage consists statutorily of proof
of an act of adultery, sexual infidelity. During marriage, spouses owe
to each other fidelity, because marriage is a monogamous, sexually
exclusive relationship, distinguishing marriage from a dating or
cohabiting relationship.
[(d) This statute includes a specific cap on damages, which does not
violate Minn. Const. art. I, sec. 8. See Schweich v. Ziegler, Inc.,
463 N.W. 2d 722 (1990), rehearing denied. Furthermore, the statute of
limitations contained in this statute assures that the plaintiff must
act within two years of discovery of the injury and resulting damage.
See Lourdes High School of Rochester, Inc. v. Sheffield Brick & Title
Co., 870 F.2d 443 (8th Cir. [Minn.] 1989).]
NOTES
(1) This proposed new tort borrows not only from the common law tort
of alienation of affection and the crime of criminal conversation
(only nine states recognize one or both) but also from an analogy to
the tort of intentional interference with a contract. It reduces the
ambiguity of the alienation of affection action and adopts many of the
elements of the criminal conversation statutes that had to be narrowly
drawn because they punished conduct criminally. Its relative virtues
include: (1) narrowly drawn remedy for injury to a marriage which
presently is uncompensated; (2) exclusive definition of interference
as an act of adultery, sexual relations with the spouse of the
plaintiff, which eliminates difficult issues of causation; (3)
intentional defined as simply sexual relations with the plaintiff�s
spouse with knowledge (actual or presumed) that he or she is married.
In the American Law Institute�s Principles of the Law of Family
Dissolution, the Reporters urge that rather than judge the moral
relations of spouses in the divorce law, tort law and to a lesser
extent criminal law should offer remedies. ALI Principles of the Law
of Family Dissolution, sec. 5.02(2) (�Losses are allocated under this
Chapter without regard to marital misconduct, but nothing in this
Chapter is intended to foreclose a spouse from bringing a claim
recognized under other law for injuries arising from conduct that
occurred during the marriage.�); see also id. at Chapter 1, § 2.
Increasingly, because divorce law does not provide sufficient remedies
for a spouse who has been injured by the conduct of the other spouse
or a spouse with another person, the law of tort offers the
possibility of redressing a wrong that injured another, for example,
recovery for fraudulent inducement to marry, communication during
marriage of a sexually transmitted disease due to infidelity during
marriage, violence during marriage resulting in physical injury to a
spouse. This statutory tort reflects this same trend by providing a
remedy for another case where the law of marriage and divorce fails to
acknowledge and redress an injury to a spouse and the marital
relationship.
(2) Need for this remedy: damage to an individual marriage and to the
social institution of marriage that anchors the family. See William R.
Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save
Families: Two Old Torts Looking for a New Career, 33 Ariz. L. J. 987
(2001).
(a) As with many torts recognized within the last seventy-five years,
this tort permits recovery for emotional and relational harms.
Marriage and family relationships, among society�s most important,
have been left unprotected by comparison to economic and employment
relationships. Currently grievous wrongs are suffered leaving people
with the belief that they are victims and the law provides no redress.
It so happens that women, rather than men, suffer more from adultery
simply because more married men engage in adultery (Eric Rasmussen, An
Economic Approach to Adultery
[http://www.law.harvard.edu/programs/olin_center.html]) and if
adultery leads to divorce as it often does, then collateral losses to
women are often greater (economic). Men, however, suffer greater
emotional injury from their wives� adultery.
(b) Despite the dominance of �no-fault� divorce laws, the spouses
themselves continue to think in fault terms and to attribute blame to
their spouse. What they discover is that the promises the other spouse
made at the time of marriage, the law and the court will not enforce.
James Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal
Culture of Divorce in Twentieth Century America (1997).
(c) Infidelity continues to be the most frequently cited reason for
obtaining a divorce. Paul Amato & Denise Previti, People�s Reasons for
Divorcing: Gender, Social Class, the Life Course, and Adjustment, 24
J. Fam. Issues 602 (July 2003).
(d) �Permanent availability,� as described by Norval Glenn in the
Journal of Marriage and the Family, describes the cultural phenomenon
of continual examination even of those persons who are married as a
potential mate, a phenomenon influenced by easy, quick �no-fault�
divorce. Norval D. Glenn, �The Recent Trend in Marital Success in the
United States,� 53 J. Marriage & Fam. 261, 268 (quoting Bernard
Farber, �The Future of the American Family: A Dialectical Account,� 8
J. Fam. Issues 431 (1987).
(e) Traditional remedies for adultery, in fault-based divorce law,
establish the principle that spouses have an obligation of fidelity to
each other. This tort establishes that others, outside of the marriage
bond, have an obligation to respect that pledge of fidelity as well,
by not engaging in sexual relationships with someone else�s spouse.
([3]Hide the commentary that accompanies the proposal.)
Now I think marriage is (generally speaking) a very valuable
institution, and that adultery is (almost always) a very bad thing.
But not all bad things are the sorts of bad things that the legal
system -- and in particular the tort liability system -- should
address. Sometimes the proposed rules seem likely to cause much more
bad than they would prevent. And often even if a narrow proposal would
be proper, the proposals that are actually offered are much broader.
Here, for instance, are just a few of the problems with the above
proposal:
1. Gallagher might be seeking a tort of adultery, but the proposed
statute isn't limited to adultery; it deliberately makes actionable
"intentional interference with the spouse's marriage that causes
injury to the spouse," and gives adultery just as one special case.
The statute would literally apply to someone who urges a friend to
leave an abusive -- or unfaithful or just unsuitable -- spouse, or
(say) a mother who effectively badmouths her son-in-law to her
daughter. (This in fact was possible under the alienation of
affections tort, though at least that tort often had a limited
privilege for such statements.)
2. Families are, by and large, financial units, at least until a
divorce; a husband's income benefits the wife, and vice versa. This is
true even as to non-community-property, at least so long as the couple
does not divorce (and much infidelity is indeed ultimately followed by
reconciliation, not divorce, a result that I take it Gallagher would
praise).
So say that Henry and Wanda are married, and Wanda has an affair with
Alex. Henry sues Alex, not Wanda. (Presumably he could sue Wanda under
the first sentence, though not if the statute is revised to avoid
problem 1 by being limited to the second sentence; but if Henry plans
to stay with Wanda, there's little benefit in suing her.) So Alex, a
culpable party, loses up to $500,000 (if the damages cap is
implemented). But Wanda, the more culpable party -- she's the one who
broke the vows, after all -- actually gains $250,000, because her
family will now get the $500,000. (Presumably the family would gain
less if Wanda reconciles with Henry before the decision or settlement,
since then Henry's damages would seem less; but I suppose a jury could
find $500,000 worth of emotional distress, loss of trust, and such on
Henry's part even if Henry takes Wanda back.)
I know that in principle tort liability for interference with contract
by an outsider may exceed contract liability for the breach by the
contracting party. But that has always struck me as a weakness of that
branch of tort law; the better view, I think, is that an aider to
misbehavior should be no more punished than the primary misbehaver
himself, absent some special circumstances (e.g., the misbehaver is a
child). And this proposal would exacerbate the weakness, by letting
the breaker of the vows use the law to profit at the expense of her
coconspirator (in a sense) in the enterprise.
3. Nor need this be iandvertent; consider a modern legal [4]badger
game: Wanda seduces Alex (or lets Alex seduce her; the line is often
quite vague). Henry then threatens to sue. Alex settles, maybe not for
the full $500,000 but for $100,000. The settlement doesn't hit the
news. Wanda then seduces Andrew, Anthony, and so on, and each time
Henry and Wanda pocket a settlement. All perfectly legal. But is it
just? Not so much.
4. All this might be less of a problem if we thought this would vastly
deter adultery, since with perfect deterrence there wouldn't be any
recoveries. But of course people aren't going to be perfectly
deterred; and some people -- especially those without enough assets to
be worth suing -- won't be deterred at all. So the cheater who just
wants sex would just have to get it from poorer partners.
Interestingly, this would probably have a sex-differential effect, to
the extent heterosexual men find younger women more attractive and
don't care as much about their partners' wealth or success, and tot he
extent heterosexual women find successful men more attractive and
don't care as much about their partners' youth. The man who is
cruising for hot twentysomethings will find his prospective partners
not much deterred, since they're largely judgment-proof. The woman who
is more sexually attracted to men who have success and status will
find her prospective partners more deterred, since they have more
money to lose. I'm not in principle troubled by such sex-differential
effects; most laws have some such effects to some extent. But the
effects do help illustrate, I suspect, the likely perverse effects of
such laws.
5. Of course, for every Henry who is willing to reconcile with his
Wanda, or is even complicit in the affair (as in 2 or 3), there may be
many who are reluctant to reconcile. The same is true if we flip the
sex of the parties. They may initially be reluctant to acknowledge the
affair to themselves, but once confronted with it, they may find it
hard to take the cheating spouse back, even if there are good reasons
for it (e.g., to preserve an intact household for the kids).
How will the prospect of a massive damages recovery affect that?
Absent alienation of affections law, a Henry might well try to avoid
seeing evidence of adultery, and once confronted with the adultery
might well conclude that there's much loss for the family in a divorce
and little gain (other than to his own pride and dignity). But if a
spouse's adultery, especially with a rich partner, equals money to the
victim spouse, the incentives (both conscious and subconscious) are
changed. Spotting adultery becomes less unappealing, because there's a
possible financial upside as well as emotional downside in identifying
it. And once the adultery is discovered, taking the cheating spouse
back promptly may well diminish the recovery (a jury is less likely to
find damages if a major source of damages, a broken home, is absent).
What's more, the victim spouse will know that in the event of a
divorce he or she will at least have an extra $500,000 to play with,
money that needn't be shared with the cheating spouse. Why not split
up?, the victim might reason -- at least I'll be well-off enough to
live in comparative comfort, and maybe even pick up a better new
spouse.
6. And of course let's not forget the obvious problems of proof and
risk of perjury. Was there an act of adultery? Should the defendant
have known the other person was married? Much of the time this will
depend on what was said and done behind closed doors, and who seems
more trustworthy and appealing to the jury. And this is even more so
today than in the past, given that men and women have innocent
friendships more often than decades ago; evidence of dinners together
will no longer be particularly probative, and it will be all a
swearing match among three people who may have all sorts of financial
and emotional motives to lie. That's in fact one reason the alienation
of affections tort has mostly been abolished.
As I said, you can love marriage and hate adultery without thinking
that more tort liability will make things better.
References
1.
http://corner.nationalreview.com/post/?q=ZjRmZjMyNDMwZTlmYWVlMzQ2NWE1MTIxNGVkNDEzNzk=
2. file://localhost/var/www/powerblogs/volokh/posts/1236791774.html
3. file://localhost/var/www/powerblogs/volokh/posts/1236791774.html
4. http://en.wikipedia.org/wiki/Badger_game
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