John Locke Update / Research Brief

Your Cheatin’ Heart Will Tell on You (and May Land You in Court)

posted on in Law & Regulation, Legal Update
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The traditional common law torts of alienation of affection (depriving a married person of a spouse’s “love, society, companionship and comfort”) and criminal conversation (engaging in sexual relations with a married person), have fallen completely out of use in most states. In North Carolina, however, husbands and wives file hundreds of alienation of affection and criminal conversation lawsuits against their cheating spouses’ lovers every year, and a decision handed down this week by the N.C. Court of Appeals means that, at least for the time being, they can continue to do so.

In 2015, when Marc Malecek discovered that his wife, a nurse named Amber Malecek, was having an affair with a doctor at the hospital where she worked, he sued the doctor, Derek Williams, for alienation of affection and criminal conversation. Citing Lawrence v. Texas, Dr. Williams asked the trial court to dismiss the case on the theory that it violated his right, under the First and Fourteenth amendments to the U.S. Constitution, “to engage in intimate sexual activity, speech, and expression with other consenting adults.”

The trial court was persuaded by Dr. Williams’ constitutional theory and granted his motion to dismiss, but, when the case reached the Court of Appeals, it was reversed. Writing for a unanimous three judge panel, Judge Dietz found that:

Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas … which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus … these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

Our holding is neither an endorsement nor a critique of these “heart balm” torts. Whether this Court believes these torts are good or bad policy is irrelevant; we cannot hold a law facially unconstitutional because it is bad policy. We instead ask whether there are any applications of these laws that survive scrutiny under the appropriate constitutional standards. … [A]lthough there are situations in which these torts likely are unconstitutional as applied, there are also many applications that survive constitutional scrutiny. Thus, the common law torts of alienation of affection and criminal conversation are not facially unconstitutional.

This is a sensible decision that is consistent with the U.S. Supreme Court’s jurisprudence regarding the right to sexual expression. However, given the incoherent state of that jurisprudence, the Court of Appeals could probably just as easily have decided this case the other way. Furthermore, the holding only pertains to the trial court’s grant of summary judgment on the theory that the torts in question are facially unconstitutional.

Dr. Williams may still succeed in defending himself on the theory that they are unconstitutional as applied to him in this case. If he should win on that theory, and if other defendants start to win on it as well, alienation of affection and criminal conversation could eventually cease to be viable. Moreover, the N.C. Supreme Court hasn’t had any recent occasion to consider the question of whether alienation of affection and criminal conversation are constitutional, nor has the General Assembly had any recent occasion to consider whether they are wise. Whether they will continue to be viable causes of action in North Carolina in the years to come, therefore, remains to be seen.

Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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