Thursday, September 7, 2017
The heart balm torts are back in the news. Almost all states recognized some or all of the 4 heart balm torts (alienation of affections, criminal conversation, seduction, breach of promise to marry) at one time. Now, however, only about 7 or 8 states recognize any of them. Alienation of affections and criminal conversation are the most common. These are suits against an interloper to a marriage based on the interloper alienating the affections of one spouse (alienation) or having sex with the spouse (criminal conversation). The North Carolina bar seems the most committed to them. Approximately 230 cases were filed last year in that jurisdiction.
Recently, a trial judge in Forsyth County (think Winston-Salem) ruled the heart balm torts were unconstitutional. The judge ruled that state law violates a person's constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults. The Court of Appeals in North Carolina overruled the judge. Eugene Volokh analyzes the opinion, which he pronounces "generally sound", here. That makes sense to me. I still hold, however, the same position I held a decade ago, that the torts don't make sense as a matter of tort theory.