A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career
Posted: 26 Jul 2002
The article considers criminal conversation and alienation of affections from a relational torts perspective. Very few states still recognize one or both tort theories as a basis for recovery. In recent years, however, a few high-profile cases have generated discussion of them as curious anachronisms. These two old tort theories have been roundly reviled in the literature and court decisions as archaic and offensive relics of a bygone era when wives were considered to be their husbands' property. In two waves, one that started in the 1930s and then one that started in the 1970s, state legislatures and, to a lesser extent, state courts abolished these two tort theories, usually along with breach of a promise to marry and seduction-collectively, the "heart balm" torts. The article traces the history of the torts and argues that the reasons given for the legislative and judicial abolition of criminal conversation and alienation of affections do not withstand scrutiny. The article then considers other explanations for the abrogation of the torts, including the evolution of relational torts, feminist support for abolition of the torts, evolving regulation of market and family, and changing American values and mores regarding marriage. Finally, the article argues that a modified interference with marriage tort theory, fashioned from the two old tort theories, should be recognized.
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