Lance MacMillian, “Adultery as Tort”

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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.

-Bridget Crawford

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2 Responses to Lance MacMillian, “Adultery as Tort”

  1. Katherine Franke says:

    Bridget – great follow up to the larger ongoing discussion on Petraeus and adultery. I sent Ethan Bronner from the New York Times Peter Nicolas’ article on adultery which Bronner cited: http://www.nytimes.com/2012/11/15/us/adultery-an-ancient-crime-still-on-many-books.html!

    I’ll forward him Lance’s piece as well.

    Katherine

  2. Q. Pheevr says:

    This bit strikes me as disingenuous:

    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, [...].

    It’s not entirely fair, I think, to claim that “all sides seem to agree” on the basis of a description of only two “sides”—even if they are the two largest and most prominent factions involved in the debate. There is, after all, another view that holds that the state should get out of the marriage business altogether. Civil partnerships, granting the same sorts of next-of-kin rights and privileges that marriage currently does, could be recognized with no reference whatsoever to the sex of the partners, or to whether their relationship is a sexual one at all. So far, this is a minority position, but it is clearly a principled one, and it deserves to be acknowledged in any serious discussion of the re-evaluation of the state’s role in marriage that has been prompted by the gay rights movement.

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