November 16, 2007
The Heart Balm Torts
This one has it all: sex, class conflict (plumber versus multi-millionaire), and a protagonist named "Johnny Valentine."
The "heart balm" torts (alienation of affections, criminal conversation, seduction, and breach of promise to marry), originally premised on the idea of a property interest in wives and children, have fallen on hard times. Only eight states now recognize some or all of these torts: Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. Of the original four torts, only criminal conversation and alienation of affections have any significant presence in those states. Criminal conversation (always) and alienation of affections (almost always) involve suing the third party (the interloper) who has interfered with a marital relationship. The unfaithful spouse is not a party to the suit.
Recently, in Mississippi, Johnny Valentine sued Jerry Fitch for alienating the affections of his former wife, Sandra. Valentine argued that Fitch used his millions to lure Sandra, who worked for Fitch, away from him. Valentine testified that he found unexplained large wads of cash lying around the home he shared with Sandra. Sandra testified that she had fallen out of love with Valentine long before her affair with Fitch; therefore, causation was missing. The jury awarded Valentine $642,000 in compensatory and $112,500 in punitive damages. The Mississippi Supreme Court affirmed at 959 So.2d 1012 (2007) (available here courtesy of SCOTUS blog).
Fitch then filed a Motion for Stay of Mandate in the Supreme Court of the United States. Fitch's argument was that the judgment violated the First and Fourteenth Amendments to the United States Constitution. Justice Antonin Scalia, acting as Circuit Justice for the Fifth Circuit, denied the motion on October 25, 2007. Mississippi divorce attorney M. Craig Robertson happily exclaims that the order "affirms the ability to recover under the tort of Alienation of Affections."
As a constitutional matter, surely Robertson is correct. However, is there a good reason, as a matter of tort law, to recognize alienation of affections or criminal conversation? At least in the common adultery cases, I don't think so (alienation of a child's affections from a parent might be different (see prior post here)). Compensation theorists are primarily concerned about spreading economic losses to soften the blow to individual plaintiffs. There seems to be little economic loss associated with these torts (domestic relations doctrines already deal with property issues associated with a divorce). There tends to be no physical injuries or property damage. Efficient deterrence, based on people behaving as rational actors, seems no more useful in justifying the torts. Sex and love are not governed by reason. The vast majority of people are unlikely to stop pursuing love and sex based on the remote possibility of a lawsuit.
The most promising justification for the torts is corrective justice, the righting of a moral wrong. Yet it seems that the true wrong to the jilted party is on the part of the unfaithful spouse. S/he is the one who promised to forsake all others. The pain of the loss comes from the rejection by the spouse, not the interest of the interloper. In the end, the unfaithful spouse makes an autonomous choice that results in the harm. The tort system has more significant matters to handle. (However, for an eloquent defense of modifying the heart balm torts, see William R. Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33 Arizona State Law Journal 985 (2001)). Your thoughts?
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Tracked on Dec 8, 2007 5:36:17 AM
I spend about 20 minutes of class time discussing these torts, primarily because we are in one of the states that recognizes the tort for alienation of affections. While it is true that one spouse does make an autonomous choice, the adage that “it takes two to tango” is applicable.
Marriage can be difficult—most people married for decades likely look back to a few difficult years. The issue is whether a third party that takes advantage of one of those difficult times should be held liable in tort. The State has a legitimate interest in preserving marriages and deterring third parties from alienating the affections of a spouse.
Posted by: Beau | Nov 19, 2007 5:23:39 AM
It does take two to tango, but it seems to me that the dancing partner truly responsible for hurting the jilted spouse is the other spouse. Isn't it the spouse's willingness to engage in an affair that creates the most anguish? That's not to say I condone the conduct of the interloper.
Furthermore, I don't disagree that the state has a legitimate interest in preserving marriages. The issue is whether the heart balm torts are effective in that regard. I'm not aware of anyone producing such evidence. Although there are confounding variables when using divorce statistics, my understanding is that there is no statistically significant difference in divorce rates between states with the heart balm torts and those that have repudiated them. That's consistent with the "non-rational" element in love and sex. Deterrence is based on people behaving as rational actors.
Posted by: Chris Robinette | Nov 19, 2007 6:56:08 AM
What if the Plaintiff knew about the affair, and collected evidence for 5 years, admittidely engaged in his own extramarital affairs, but decides to sue based on the fifth year so as to fall within the 3 year statute of limitations? North Carolina recognizes criminal conversation as a personal injury
Posted by: JAMES | Sep 11, 2008 5:10:55 AM