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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe Legal Price of Adultery Goes Down
North Carolina and West Virginia Abandon Heartbalm Actions
Joanna L. Grossman and Lawrence M. Friedman
June 24, 2014
... Historically, there were two causes of action that might allow a man to sue his wifes lover, or a woman to sue her husbands mistress: criminal conversation and alienation of affection (collectively known, along with some others, as heartbalm actions). Most states have long since thrown these claims into the ashbin of history, but North Carolina, along with only a small number of other states, has up to now stubbornly preserved them. In a recent ruling, Rothrock v. Cooke, a lower court judge in North Carolina has decided that enough is enough ...
A plaintiff has a case for alienation of affections if he or she can show a happy marriage (a marriage of genuine love and affection) which the wicked defendant had alienated and destroyed, through wrongful and malicious acts. To win a case of criminal conversation, a married plaintiff has to show that the defendant, during the marriage, had sexual intercourse with the plaintiffs spouse. Criminal conversation is a rather odd label for this kind of lawsuit: first of all, it is not a criminal case; and secondly, the gist of it is hardly conversation; it is sex plain and simple ...
... Claims of blackmail and extortion were behind a number of the legislative moves to abolish these causes of action. But there was surely an even deeper reason for the decline and fall of these doctrines. Victorian sensibilities themselves gradually entered a stage of decline and fall ...
Judge Craigs opinion in the Rothrock case more or less makes this point, although hidden behind a dense thicket of legal verbiage. His central argument, which seems a bit far-fetched, is that these causes of action are offenses against freedom of speech, freedom of expression, and the right of privacy. Alienation of affections, he says, explicitly seeks to punish the expression of friendliness, affection or intimacy by consenting partners and effectively restrains those consenting parties from engaging in free expression. Criminal conversation too punishes all expression of affection or intimacy in the form of consensual sexual conduct between individuals ...
http://verdict.justia.com/2014/06/24/legal-price-adultery-goes
LWolf
(46,179 posts)Then maybe marriage would become less common, and more successful because of it. Or maybe it would simply become extinct.