Saturday, June 21, 2003

Alienation of Affection

The Supreme Court of Missouri just issued a decision abolishing the tort known as "alienation" of affection, which formerly allowed a wife to sue the woman who committed adultery with her husband. (Men could sue as well, of course; I just couldn't figure out an elegant way to phrase the previous sentence so as to be gender-neutral.)

I'm not convinced by the court's reasoning, although there might be other good reasons to abolish that particular tort. Here are the court's main arguments:
In order to ensure pure bloodlines and discourage adultery, the early Germanic tribes provided that men were entitled to payment from the wife's lover so that the husband could purchase a new spouse. Hoye v. Hoye , 824 S.W.2d 422, 423-424 (Ky. 1992); Bruce V. Nguyen, Note, Hey, That's My Wife! - The Tort of Alienation of Affection in Missouri , 68 M O. L . R EV . 241, 243, 244 (2003). As successors to the Germanic tradition, the Anglo-Saxons also provided a cause of action for men to recover for another's interference with the marital relationship. The basis for this cause of action was that wives were viewed as valuable servants to their husband. Id .
* * *
Beginning with New York in 1864, almost every state in this country eventually established a cause of action for alienation of affection in which men, but not women, could vindicate their rights in the marital relationship. Prosser and Keeton, supra, at 918. In the late nineteenth and early twentieth centuries, most states, including Missouri, acted to equalize the legal status of wives by allowing them to sue in their own names. Therefore, the original justification for the tort, that husbands had a property right in their wives, was undermined. Hoye, 824 S.W.2d at 424. Nonetheless, the tort persisted, but with a new rationale. Modern courts came to justify suits for alienation of affection as a means of preserving marriage and the family.
* * *
The original justification for the tort of alienation of affection lies in the antiquated concept that husbands had a proprietary interest in the person and services of their wives. Although modern courts no longer justify the tort of alienation of affection in these terms, the tort has remained fundamentally unchanged since its establishment in Missouri. The elements are the same. The defenses are the same. Because there has been no structural change to alienation of affection claims since its inception, the tort remains grounded in the property concepts that originally justified it. Hoye, 824 S.W.2d at 425, quoting, H. Clark, THE LAW OF DOMESTIC R ELATIONS IN THE UNITED STATES, SECTION 4.2, P. 267 (1987).

This idea "is perhaps better suited to an era that regarded one spouse as the property of another." Hoye, 824 S.W.2d at 425, quoting Prosser and Keeton, supra, at 917. It has no place in modern jurisprudence.
I don't follow this reasoning at all. Yes, in past centuries the tort of alienation of affection was supported by the idea that the husband owned his wife. Yes, we no longer agree with that concept of marriage. But, as the court itself admits, that justification was abandoned at least a hundred years ago, when states started allowing women to sue as well. Why must a tort be abolished now because of what people thought hundreds of years ago? Where does the court get this bizarre notion that the "wife as property" justification, even though abolished many decades ago, is still somehow lurking somewhere behind this particular tort?

Here's the court's second reason:
Even though the original property concepts remain inextricably bound to the tort, some still argue that suits for alienation of affection must be retained as a useful means of preserving marriages and protecting families. See, Norton, 818 p.2d at 12 (Utah 1991); Thomas v. Siddiqui,, 869 S.W.2d at 743 (Mo. banc 1994) (Robertson, J., dissenting). While these are laudable goals, it is unlikely that suits for alienation of affection actually serve this purpose. Thomas v. Siddiqui, 869 S.W.2d at 742 (Price, J., concurring). To the contrary, the opposite is likely true. Funderman v. Mickelson , 304 N.W.2d 790, 791 (Iowa 1981); Nguyen, supra, at 253.

First, suits for alienation of affection are almost exclusively brought after the marriage is either legally dissolved or irretrievably broken. Revenge, not reconciliation, is the often the primary motive. O'Neil v. Schuckardt , 733 P.2d 693, 697-698 (Idaho 1986); 54 A M. J UR. P ROOF OF F ACTS 3D Proof of Alienation of Affections , section 6 (1999).
Second, by filing suit, the plaintiff is publicly acknowledging the intimate details that led to the breakdown of the marriage. The necessarily adversarial positions taken in litigation over intensely personal and private matters does not serve as a useful means of preserving the marriage.
This makes even less sense. The court focuses myopically on the fact that, viewed from the ex post perspective, a tort lawsuit won't reconcile the parties. But the court completely ignores the fact that, from the ex ante perspective, the threat of a tort lawsuit might have some deterrent effect. Deterrence is one of the classic justifications for tort law, after all. It might not deter perfectly, but no tort cause of action deters perfectly. (The court says, "Revenge, not reconciliation, is often the primary motive," but so what? Any tort action might be brought, at least in part, for purposes of revenge.)

The same reasons would lead one to abolish the tort of interference with contractual relations, where one business sues another for interfering with an existing contractual relationship. You could say all the same things: Suing won't reconcile the original parties to the business contract, and such a lawsuit might be brought in a spirit of revenge. Yet our legal system thinks that existing business contracts are worthy of at least some minimal protection, and that we should deter people from trying to induce other people to breach a contract. Why not give marriage that same baseline protection? Why not give jilted wives the same legal remedy that corporations have?

The court also says that exposing intimate details of the marriage won't serve the purpose of reconciliation -- which, again, might be true, but from the ex ante perspective, the threat that intimate details might be revealed might be enough to deter the would-be adulterer. Plus, this rationale would likewise justify the abolition of the tort for interference with contract (after all, such lawsuits might lead to the discovery of a business's trade secrets, etc.)

The court's third reason was that it had previously abolished a closely-related tort called "criminal conversation," and that it should abolish alienation of affection in order to be "consistent." Maybe so, but if the abolition of "criminal conversation" was in error, consistency is not a sufficient reason to compound the error.


I'm not saying that alienation of affection lawsuits are necessarily a good idea, and there might be good reasons to abolish that particular tort. But if abolition is the chosen course of action, the court should at least have a good explanation. Most importantly, the court should explain why interference with a marriage contract should be wholly without legal remedy, while interference with a business contract can be the basis for a lawsuit.

5 Comments:

Blogger Carlyle said...

Just came across this blog and posting as a result of doing some research. I think that Stuart Buck is totally missing the point by comparing a "marriage contract" with a business contract. A business contract typically involves products, services rendered, and related areas that typically do not involve concepts such as love, emotions, vows of being a partner through thick and thin, etc. Maybe the balance of the states that allow alienation of affection suits to proceed would abolish them if more defendents countersued with suits that lay claim to the plaintiff allowing the so called alienation of affection; by not living up to the expectations of a marriage partner and the vows they gave when the marriage took place. Being a loving, caring, supportive, protecting partner, and a loving, caring supportive parent to the offspring of the marriage and even to prior offspring of one partner or another brought into the relationship. An alienation of affection suit assumes that the marriage couple belong to each other like chattel..... that each member is "owned" by the other, by placing a pricetag on them, when they leave due to the affections of another, due to them receiving from another; what they rightfully should have been receiving from their partner in marriage. By placing a pricetag on that action, you are actually cheapening the true intent of a marriage relationship from one of love, support, protection, etc. into one of 'property'; of borderline legal prostitution since physical sexual adultery is the primary definition of alienation of affection.

11:22 AM  
Blogger Kery said...

Alienation of Affection ... I can not sue a woman who knowingly seduced a married man, and yes I am sure she knew, we all worked for the same company and he told her yet some dumb idiot can spill her own hot coffee and sue mcdonalds ... you tell me how that can be close to right!!

6:43 PM  
Blogger William said...

The first commentator errs in assuming that the purpose of these laws is to award damages from the spouse who leaves a marriage. This is not the case. Alienation of affection torte is aimed at those parties who do not respect the marriages of others, or in other words, those who see no wrong in pursuing a married person. Adultery has become so much an accepted part of our culture; in part because there are few if any sanctions against it, socially or legally. The point of this torte is not to keep some one in a "bad" marriage, but to hold a third party liable for interfering in a marital relationship. It is my understanding that twenty six people attempt to take their own or some one elses' life over these matters every day in this country. Adulterous relationships are the number one cause of divorce and the primary reason behind "irreconcilable differences". That anyone should think for even a moment that those who chose to engage in a romantic relationship with a married person do not deserve whatever they get has as little respect for the sanctity of marriage as the adulterers themselves.

12:08 AM  
Blogger deborah said...

My husband messed around with a co-worker at his job and we all work for the same company, and now she is pregnant and is keeping the baby. Yes, they were both stupid, but I truly believe she trapped him because she has been trying to get pregnant and has been unsuccessful until now. You mean to tell me that I can't sue her for knowingly keeping a baby when it has broken up my marriage and home? This is so wrong. I want her to fill the loss of emotion and financial security that I am feeling.

7:21 PM  
Blogger Joshua said...

My wife has left me for a wealthy man. Our relationship was strong until the two met and did their thing. I can accept that she wanted something else. My problem is that now I must give up half of my hard earned savings because some guy came and enticed my then wife to leave. I would like to maintain my current lifestyle but would be unable to if I must give up half of what I have. I think it only fair to be able to be compensated for my monetary loss due to anothers indescresion. I will try to sue this man for the difference of what I lose in the financial agreement between my ex wife and me.

12:25 PM  

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