Hate the Husband? Sue the Mistress!

Earlier this summer, after news broke of former Mississippi Congressman Chip Pickering's alleged affair with college sweetheart Elizabeth Creekmore Byrd, Pickering's wife transformed a personal tragedy into a public farce by suing her husband's purported lover under Mississippi's antiquated "alienation of affection" law.

Now North Carolina has proven that the New South is still capable of old tricks, "modernizing"--but not repealing--its own "alienation of affection" statute. Such causes of action, vestiges of legal codes that also prohibited divorce and criminalized premarital sex, provide a consummate example of the sort of private controversies in which the government has no business meddling.

Unfortunately, an unlikely alliance of trial lawyers and Christian fundamentalists continues to defend the prerogative of jilted spouse to turn love triangles into quadrangles--with the state judicial system serving as an ungainly fourth wheel. Yet the publicity surrounding the Dickensian-named case of Pickering v. Pickering may prove the best hope in a generation to curtail such misguided suits.

Washington insiders have already done their share of snickering as the Pickerings' bickering degenerated into dickering. After all, Congressman Pickering built his political career as an outspoken conservative and former Southern Baptist missionary who sported his religious stripes on his sleeves. He was widely regarded as Governor Haley Barbour's favored choice to replace the retiring Trent Lott in the United States Senate--an opportunity that Leisha Pickering alleges her husband turned down in order to continue his extramarital affair.

From a public relations standpoint, it appears that Congressman Pickering also trysted in the wrong place at the wrong time: He lived alongside embattled Nevada Senator John Ensign in the complex at 133 C Street that has become for infidelity what the Harding era's Little Green House on K Street once was to political corruption. By the time Mrs. Pickering filed her lawsuit, her disgraced husband--once a darling of the Christian Right--had become a poster child for the Christian Wrong.

In most states, the matter might have ended there. But Congressman Pickering's mistress turned out to be a wealthy woman whose family owns Cellular South. So Mrs. Pickering has opted to soothe her heartbreak inside Ms. Creekmore Byrd's deep pockets.

Far harder to explain is North Carolina's recent decision to retain its own "alienation of affection" statute. That state's relatively progressive governor, Beverly Purdue, approved legislation that would narrow the state's law to exclude couples who have already separated, but have not yet divorced. Businesses and commercial enterprises also may no longer be sued for tortuous interference with marriage. Alas, the legislation only applies from October 1, 2009, onward--so previous transgressors, such as alleged John Edwards paramour Rielle Hunter, could still face such litigation. Whatever else one might say about Tar Heel lawmakers, no one can accuse them of going soft on adultery.

Adultery itself is still illegal in many states, but these criminal statutes are sporadically enforced. Law Professor Jonathan Turley has written compellingly that they are also likely unconstitutional in the wake of the Supreme Court's legalization of sodomy in Lawrence v. Texas, although that didn't stop Virginia from prosecuting John Bushey in 2004, a sordid case which concluded with the defendant pleading guilty and paying a $125 fine plus $36 in court costs. Not exactly a public stoning. (The exception to the rarity of infidelity prosecutions is in the United States military, which continues to target adulterers; men who covet their neighbors' wives are no more welcome in our Armed Forces than girls who sleep with girls or boys with flat feet.) In contrast, lawsuits for "alienation of affection" and "criminal conversion" remain surprisingly common.

More than two hundred such suits are filed each year in North Carolina alone. The verdicts can have devastating financial effects on the lives of the defendants, but often prove great windfalls for the cuckolded parties. For example, betrayed wife Christine Cooper of Greensboro, North Carolina, won a $2,000,000 judgment against her husband's lover in 2001. Davidson College wrestling coach Thomas Oddo garnered $1.4 million from Florida physician Jeffrey Presser that same year after the doctor "stole" his wife's heart. In Mississippi, the state's Supreme Court upheld a $700,000 judgment against businessman Jerry Fitch for seducing the married Sandra Valentine.

In addition to North Carolina and Mississippi, six other states still permit lawsuits for either "alienation of affection" or its sister sin, "criminal conversation"--in which conversation is a polite legal euphemism for sexual intercourse. Moreover, "alienation of affection," unlike "criminal conversation," does not even require physical contact. Effective flirting will suffice. Needless to say, residents of Hawaii, Illinois, New Hampshire, New Mexico, South Dakota, and Utah should be careful whom they entice. So should tourists and business travelers who happen to pass through these jurisdictions.

Some argue that we live in a "center-right" country. The reality is that we live in a "center-left" country governed by center-right laws. Most sensible people--including many deeply troubled by infidelity--view the notion of suing your spouse's lover as rather asinine. (The exception is State Senator Jake Knotts of South Carolina, who recently proposed reestablishing an "alienation of affection" tort in his home state, where in 1992 the Supreme Court had declared an earlier law invalid. As Knotts sees matters: "We protect our automobiles. We protect our homes. There's laws to protect everything and we just need laws to protect the family.")

The problem is that husbands and wives aren't chattel. True love cannot be bought and sold. Even if such litigation does deter infidelity--a highly dubious notion, as passion tends to be a far stronger force than civic virtue--it is not at all clear why this is a proper role for government. Just because conduct is distasteful does not mean it automatically deserves legal redress. Just ask the citizens of Sterling, Iowa, who make their town a laughingstock in the media several years ago with their quixotic effort to criminalize lying.

I feel genuinely sorry for Leisha Pickering. First, she squandered half her life in the company of New Hebron, Mississippi's very own Elmer Gantry. Now, in order to win her bizarre lawsuit, she must prove that Ms. Creekmore Byrd pilfered her husband's love. In response, all that the defendant must show is that the Pickerings' marriage failed for reasons independent of her own conduct--that she was a symptom rather than a cause. For example, she could argue that Mrs. Pickering had lost her looks. Or that Congressman Pickering had never truly loved his wife from the outset. Not pleasant claims. But that's what you open yourself up to when you start using the judicial system as a mechanism for personal vengeance.

The unfortunate reality is that the case of Pickering v. Pickering, already under seal, will likely settle before such titillating matters can be litigated. And Mrs. Pickering may have the final laugh, as she will walk away a rich divorcee while Ms. Creekmore Byrd gets stuck with the man that she bargained for. After all, husbands, like golfers, rarely cheat but once.

The real losers from such an outcome, of course, will be the citizens of Mississippi, who will have missed out on a chance to rid themselves of this wacky and invasive law. A far better result would be for Ms. Creekmore Byrd to challenge Mississippi's "alienation of affection" statute as a violation of the United States Constitution. In the post-Lawrence era, she might win. And well she should. The consensual conduct of adults in their own bedrooms ought to be their own business, and maybe that of their spouses, not a matter to be deliberated over by a jury of meddlesome peers.

 

Comments

[Dawn Elaine]

I'm a divorce lawyer, and I can tell you that not only is what happens in the bedroom best left to the two adults involved, what happens in the marriage is generally impossible to parse out.

Family violence (and I include in that term psychological terrorism, economic extortion, and emotional battering) happen far more frequently to both men and women than we (or the DoJ) can measure. Less compelling, but equally devastating are marriages where the couple lives parallel lives until one of them finds someone who actually engages and cares for them. It's these unknown tragedies that alienation of affection and criminal conversation and (mea culpa for the State of Maryland) statutes criminalizing adultery penalize.

But the solution is more than just getting rid of these laws: the bsolution is to stop using our laws to support religious belief. Doing so is an enormous violation of the Constitutional provision separating church and state.

Don't get me wrong, I'm not saying that two adults can't have a sanctified marital relationship, but that relationship is something between the couple and their "Higher Power" whatever that is to them, NOT something that should be elevated to some kind of social icon in need of protection.

[JuniperSunshine]

But some of us WANT a legally recognized marriage. I'm a housewife with four kids. Why shouldn't I have the right to have my marriage contract respected by the courts? It's easy to say it's nobody else's business if a marriage breaks up when you are not serving your family's needs for free for years. With alimony and child support payments up to the whims of the judge, some of us want MORE, not LESS legal protection of the marriage contract.

[lsudem]

That's what pre-nups are for. The two people entering the marriage contract should negotiate the terms of the relationship and what will occur should the marriage dissolve. The '"one man, one woman, til death do us part" marriage no longer applies to most families, so it doesn't make sense to have laws that reflect that ideal.

Alimony and child support payments are subjects that can be discussed and negotiated before and throughout the marriage. I know of no reason why a court wouldn't enforce such a contract between two adults as long as the children were supported. But too many people don't want to have these conversations.

[Aaror]

Reading the comments, a lot of folks have brought up the (hypothetical) children of the jilted spouse. Also, the fact that marriage is a contract, and an affair is a potential inducement to break the contract was brought up. Here is the thing though.
If the "contract breach," is sexual congress outside the union of marriage, then alienation of affection cannot apply unless sex happens. I.e. a man can have a deep friendship with a woman, and pay far more attention to her than his wife, and as long as he doesn't have sex with her there is no contract breach.
If the "contract breach," is the ending of the marriage, then the slighted party had darn well better wait for the adulterer to file for divorce, or you end up arguing "she slept with him, so I filed for divorce, so she ended the marriage."
I mention the kids because the kids care more about the parents being together than what happens in the bedroom (said from bitter experience). I don't think a woman should be forced to stay with a cheating man for the kids, but saying that the mistress ended the marriage means ignoring that filing for divorce is what ends a marriage. There are a lot of marriages that survive affairs, but it takes remorse and understanding and forgiveness.

[Rimser]

At the end of the day, a marriage is a socio-economic partnership. A contract. Each partnership (marriage) is structured differently. Very few could be classified as a 50/50 partnership. That said, should one of the parties decide they no longer wish to be in the partnership, they should (wo)man up about it. Be honest not only with their partner but him/herself. He/she should also be prepared to dissolve the partnership equitably.

If he/she is not honest, they should pay the consequences of their actions -- inclusive of damages to their partner, most likely in the form of a greater equitable settlement.

In other words, if you play, you pay.

[JuniperSunshine]

So the person who knowingly tries to get a mom or dad to leave their marriage is just an innocent bystander? I don't buy it. Of course the straying spouse deserves blame. But so does the home-wrecker. If your conscience is not enough to keep you from breaking up a family - and it seems like it isn't, for some people - then perhaps when it hits your pocketbook you'll feel some remorse. Perhaps the adult children can sue after they come of age. Is that better?

[illinoisan]

I support Alienation of Affection laws. Further, I think it should be criminalized in cases where innocent children are the victims of a third party breaking up their family.

[cecebo]

Me too. My husband left me and my 3 kids, the youngest was 2, for a wealthy older woman (we were struggling working class). If we had that law in California, I would have taken her to the cleaners.

[JuniperSunshine]

Good for you. The state of California may not respect your marriage contract, but most of the rest of us do.

[ThinkCreeps]

Yeah right. The third party has no help at all from one of the first two parties?

[Jaywalkker]

If these laws catch on with any success rate, it would almost seem that it would be easy to set up a husband/wife team of virtual highway robbery. Seduce! Sue! Profit!

[Aaror]

That was what I was thinking.
Have wife flirt with rich guy.
Have wife "leave," her husband.
Husband sues rich guy. Once he wins millions, he and wife "reconcile."
Repeat when money is spent...

[greendream]

I sort of like this...I've always wanted to throw up everytime I've seen a wife 'stand by her man' whenever one was found out or to watch the jilted spouse be left with nothing but heartache while the unfaithful one goes on his (or her) merry way with the new partner. I like the idea of having the power to hit back. It probably won't be a deterrent to adultery and it may not amount to much more than a circus but it will probably feel good to be able to mess up things. Giving up graciously and not 'causing a scene' just isn't some people's style.

[redsongia]

Sometimes people leave you.

[malodorousgit]

It's astonishing that a law like this exists and that anyone outside of the far right would support it. What will they do next, bring back the Scarlet Letter? I know that se.x.ua.l freedom in the 60s got out of control, but this is the pendulum swinging way too far back in the other direction.

[ZenJu]

Modern marriage is such an emo, control-freaky thing anyway, which is why I'm not gonna fall for that trap. It evolved from patriarchal customs of control and power over women, property and offspring anyway. Love, as a Tom Robbins character so well stated the matter, is an outlaw. Trying to regulate it, control it, legislate it, is a fool's effort.

[unitron]

"He was widely regarded as Governor Haley Barbour's favored choice to replace the retiring Trent Lott in the United States Senate--an opportunity that Leisha Pickering alleges her husband turned down in order to continue his extramarital affair."

So, is she mourning the loss of a husband, or of her career as the wife of a guy with a political career?

[natturnerx]

i'm a fairly progressive person, but i dont see any problem with the state having reasonable laws to encourage fidelity in marriages. if the state licenses marriages, records them, & defines property rights & such between spouses, then it doesnt seem unreasonable that there would be a legal cause of action in cases where the marriage contract was breached or interfered with.

[Appleblossom]

State also has an interest in reducing the long term cost on the courts when it comes to divorces. At least then they can recoup the losses by having really high filing fees. :D

[ZenJu]

Better, then, to never marry. After all, the custom evolved out of patriarchy and the concept that a man "owns his woman like he owns his dawg"...Slapping laws on love is a misguided notion from the very get-go.

[Jaywalkker]

Marriage is what you make of it. You define your relationship with a significant other, not historical customs that went outdated decades ago.

[illinoisan]

By all means, if you don't intend to stay faithful or can't get your partner to agree to an open arrangement, don't marry.

[Aaror]

Haha, so true,
You know that words like Bridal and Bride refer to the fact that the man was originally given a bridle to control his wife with like he would a horse. The man was called a groom because that is what you called someone charged with caring for an animal.
I wish I could publicize that, it would probably result in a lot of renaming and confusion in the wedding industry once women didn't want to be brides or have grooms.

[Channel4NewsTeam]

I've got a mortgage contract. If I get laid off, can I sue my boss for breach of contract and force him to pay my mortgage payments? That would, after all, interfere with my ability to keep my contract with the mortgage company.

A marriage contract is between two people. Not three. How does one start including a third person in the contract when the third party hasn't signed anything or agreed to the marriage contract? Can we apply this to other contracts? There's a whole lot of contacts that might be interesting to attach a third person to after the fact.

[weatherwaxx]

Oh, give me a break.

Nobody "steals" a husband. They don't come with handy pop-out wheels, no wicked Jezebel can just pick one up and walk away with him.

IF A GUY CHEATS, IT'S HIS OWN DECISION AND HIS OWN FAULT.

Any woman dumb enough to want a cheater ... well, when he gets bored and starts cheating on her, at least she won't be surprised, eh?

[IUAlumna]

I don't think she wants the cheater, just money and revenge, and probably not in that order.

I am pretty far left, but I have a lot of trouble working up sympathy for anyone who knowingly commits adultery.

[VirginiaJeff]

I read the whole article, which seemed to consist more of sarcasm than substantive argument. So, I'll just say I think the ability to sue someone who's helped your spouse commit adultery against you sounds pretty cool.

[JBS]

Ya' don't go messin' round with married women (or married men), you don't have to worry about gettin' sued.

The law ain't about deterring infidelity, it's about compensating the victims.

I knew a guy who sued in NC.

His wife ran around with her supervisor from work and ran up a mountain of debts including hundreds of bad checks before abandoning him with a pre-school age child. He didn't get much, but the boy-friend ended up having to pay all the debts she ran up while she was running around.

If the guy my ex-wife ran off with had had two nickels to rub together, I might have sued too. As it was, I not only had to pay all the bills she left behind, I had legal expenses when they tried to make me pay child support for the kid he fathered on her.

[Chris202]

Elizabeth Edwards should sue Hunter for criminal conversation (adultery) and alienation of affection (willful and malicious interference with marriage relations by a third party). She should also sue Andrew Young for alienation of affection. They both wanted money so she should hit them by taking some of the beloved money from them.

[oafishcad]

"Adultery itself is still illegal in many states, but these criminal statutes are sporadically enforced. Law Professor John Turley has written compellingly that they are also likely unconstitutional in the wake of the Supreme Court's legalization of sodomy in Lawrence v. Texas"

Excuse me? Gay sex is equal to adultery? I don't think so. As for the "poor mistress" being held liable for her actions, why not? If a woman (or man) knowingly has an afair with someone who's married, they are not some innocent victim. They are a party to adultery every bit as much as the Adulterous spouse.

[ramblin jack]

Adultery is not a government matter iti is a religious one and laws should not be based on one's belief in God speration of church and state. If you cannot keep your man/woman you deserve maybe to lose him or her as no one is chattel

[oafishcad]

If the husband/wife is held liable in a divorce, the person they "cheated" with is is equally liable. That's all I'm saying. Equal liability. If you don't like divorce laws, change em.

[selma]

If you cannot keep your man/woman you deserve maybe to lose him or her as no one is chattel"

Sure. Blame the victim. This attitude alone validates such laws..let the person committing adultary and destroying children's lives walk freely without consequences.

[VirginiaJeff]

Faved, oafishcad.

[weatherwaxx]

A marriage is a commitment between two people. If one of them decides to stop honoring that commitment and starts sleeping with someone else ... Yes, the other person is party to wrongdoing. But the cheating spouse is the one responsible. It isn't all that difficult to say, "Sorry, I'm married, and I don't cheat." I'm speaking from experience--one simple listtle sentence, works like a charm.

No, I don't have a lot of respect for people who deliberately get involved with a married man (or woman), unless there's some extraordinary extenuating circumstance, like incurable insanity or long-term coma--but the only person who can be held responsible for honoring a marriage vow is the one who made it.