Commenting on the Petraeus case, Katherine Franke posted here about the status of adultery as a crime in 27 jurisdictions. Today I stumbled across an article by Lance McMillian (Atlanta’s John Marshall), Adultery as Tort, 95 N.C. L. Rev. 1987 (2012). Here is the abstract:
North Carolina is one of the last remaining states to recognize tort claims arising from adultery. Ignoring criticism of this position, the appellate courts of the state have consistently and steadfastly refused to abandon adultery-based actions, despite many high-profile opportunities to do so. Traditional torts such as alienation of affections and criminal conversation thus retain their viability. Not everyone is pleased with North Carolina’s isolation in this regard. Attempts in the North Carolina legislature to repeal these perceived legal relics have increasingly gained traction in recent years. With the future of these torts in North Carolina in doubt, the time is ripe to assess whether any compelling reasons exist to preserve them.
In this vein, this Article offers a countercultural defense of North Carolina’s continuing embrace of adultery as tort. First, as the ongoing debate over gay marriage demonstrates, citizens of all political stripes look to government to validate marriage as an institution. Gay marriage advocates see state licensing as an essential step in elevating the status of same-sex couples. Gay marriage opponents, on the other hand, look to the state as the decisive authority for protecting the traditional view of marriage as being between one man and one woman. But if the state is the proper vehicle for legitimizing the marriage bond, as all sides seem to agree, then it follows that the state should have a prominent role in protecting that bond. Second, the tort system presently offers robust protection to victims injured when their business or contractual relationships suffer sabotage from third-party tortious interference. Marriage, as a relationship of demonstrably greater importance, deserves the same level of legal respect. Third, through loss of consortium claims, the law already offers strong protection of the marital bed against intrusions by third-party tortfeasors. The ubiquity of loss of consortium claims shows both tort law’s desire to protect marriage from the actions of third parties and its willingness to intrude into the most private of personal details to effectuate this desire.
By contrasting adultery as tort with these other areas of legal interest, I hope to demonstrate that adultery-based torts are not as far out of the legal mainstream as is commonly assumed, perhaps paving the way for a wider acceptance of claims such as alienation of affections once again.
The full article is available here.