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Angela Rothrock was an angry woman. Most states have long since thrown these claims into the ashbin of history, but North Carolina, along with only a small number of other states, has up to now stubbornly preserved them. In a recent ruling, Rothrock v. Cooke , a lower court judge in North Carolina has decided that enough is enough. He ruled that these causes of action were no longer valid in North Carolina, although for somewhat strange reasons.
Just days later, the Supreme Court of Appeals of West Virginia reached a similar conclusion, eliminating the tort of criminal conversation, but for more sensible reasons. Her claims were based on the two hoary causes of action we mentioned above: There are no defenses based on motive or consequence. The adultery is the wrong that merits a remedy. Angela no doubt thought she had a good case.
North Carolina has always allowed this pair of claims. And with a certain gusto. About two hundred suits for alienation of affections are filed each year in North Carolina. Some sort of climax was reached in North Carolina, however, has been, as we said, something of an outlier.
Almost all the other states have already said goodbye and good riddance to these lawsuits, either by judicial rulings eliminating the causes of action or legislative actions abolishing them. And the few other survivors—Hawaii, New Mexico, Utah, and South Dakota—seem to make little or no use of these lawsuits. Only in North Carolina did they flourish. Moreover, in his opinion, these types of lawsuit violated rights guaranteed by the United States and North Carolina constitutions.
In the high and palmy days of Victorian sensibilities, these two causes of action had been very much alive. They were part of a cluster of rules and institutions that aimed to build a kind of legal wall enclosing and protecting traditional marriage. The most important of these were rules about adultery and fornication; and rules that made divorce hard to get in theory , and available only to the truly innocent also in theory. There were other subsidiary rules: But the law specifically offered the seducer a kind of get out of jail free card: A jilted woman had another rather powerful weapon: An engagement was treated as a kind of contract; jilting breached the contract, and therefore laid the jilter open to a suit for damages.
And it was strongest of all if she became pregnant with his child. In theory, breach of promise was a unisex action; but in fact, only women ever filed suit. They were, to be sure, bit players in the drama, but they were not completely unimportant. Unlike breach of promise, these were open to men whose wives had cheated on them. Alienation of affections had broader possibilities.
It could be brought against anybody who poisoned the relationship between husband and wife—an evil mother-in-law, for example. But even as early as the 19 th century, these various causes of action were not universally applauded. There was a constant drumbeat of criticism. In theory, these were claims brought by the pure against the impure, but a strong odor of blackmail and extortion hung over them. Violet sued for alienation of affections.
No doubt many people thought she was nothing but a gold-digger. The Senator denied the charges and accused the McFarlins of blackmail. The bad publicity kept coming. After all, the newspapers tended to report the lurid, the sensational, the unusual; and these were often distinctly fishy—stories that played into the idea that these causes of action were open invitations to abuse, that they led to false claims, extortion, blackmail, and the like.
State after state felt the heat and got rid of all of these actions: In some states, the courts stepped in—in Idaho, for example, where the court simply held that the state would no longer recognize these as valid causes of action. The Mississippi Supreme Court abolished criminal conversation in but curiously enough reserved judgment on alienation of affections. In any event, by , as we said, only a few of these dinosaurs survived, and apparently they were thriving only in North Carolina.
The bad publicity and the scandals were certainly a major reason why courts and legislatures moved to get rid of crim con and alienation of affections. Basically, these causes of action were supposed to protect the purity of women and uphold the sanctity of traditional marriage. But powerful, elite men came to see crim con and alienation of affections along with breach of promise as weapons that designing women could use to attack them and extort money.
Their influence probably doomed these causes of action. Claims of blackmail and extortion were behind a number of the legislative moves to abolish these causes of action. But there was surely an even deeper reason for the decline and fall of these doctrines. Victorian sensibilities themselves gradually entered a stage of decline and fall. In this era of permissive sex, this age of anything goes, this period of x-rated shows and gay marriage and no-fault divorce, crim con and alienation of affections seemed as out of place as a wooly mammoth in the jungle.
His central argument, which seems a bit far-fetched, is that these causes of action are offenses against freedom of speech, freedom of expression, and the right of privacy.
The founding fathers would be amazed at the idea that freedom of speech provides a shield of protection for seduction, or that sex outside of marriage comes under the sheltering wings of the concept of freedom of expression. How expressive is conduct that by design occurs in secret? But at the end of his opinion, Judge Craig makes what is probably his strongest point: Golden, the original defendant, challenged a decision of Kaufman a lower court judge.
The facts were these: Mark and Maria Miller were married in they have a year-old son. Golden, an employee of New York Life, helped Maria Miller with her k retirement account; and did so good a job, and so winningly, that they apparently found each other sexually irresistible. How often do affairs start during retirement planning?
Maria then divorced her husband, Mark. For good measure, he also sued New York Life for failing to supervise a randy employee adequately. West Virginia had long since abolished alienation of affections but apparently had not bothered to do the same for criminal conversation. The court saw little reason to distinguish between the two causes of action; they were basically twins. This is one more indication of the way the legal current is running.
Of course, West Virginia decisions are not binding in North Carolina, which can continue to go its own way. We cannot, then, be sure that the North Carolina decision will stick. That court would have the last word on the subject; and it has so far given no sign that it wants to get rid of these causes of action, and never mind what happens elsewhere in the country.
But sooner or later the end will surely come. The Rothrock case indicates, if nothing else, that some judges in North Carolina feel the time for abolition is now. The mills of change grind slowly in North Carolina, but in the end they will no doubt grind exceedingly small.
Family Law , Injury Law. Share Tweet Share Share. Heartbalm in North Carolina Angela no doubt thought she had a good case. The History of Heartbalm In the high and palmy days of Victorian sensibilities, these two causes of action had been very much alive.
Cooke and Golden v. Conclusion This is one more indication of the way the legal current is running. Family Law , Injury Law Tags: More Commentary by Joanna L. Grossman and Lawrence M. Publications by Joanna L. McClain and Joanna L. Rhode, and Joanna L. The opinions expressed in Verdict are those of the individual columnists and do not represent the opinions of Justia.
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