You're married and you discover that your spouse is unfaithful. You're devastated and consider getting a divorce. But, divorce doesn't seem to be enough -- shouldn't someone pay for the anguish and shame the affair has caused you?
Yes, according to Louisiana State University law professor and tort expert William R. Corbett, whose 2001 paper, "A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career," has been cited by dozens of researchers, most recently Shauna M. Deans in her 2010 paper "The Forgotten Side of the Battlefield in America's War on Infidelity: A Call for the Revamping, Reviving, and Reworking of Criminal Conversation and Alienation of Affections."
Although rare, some spouses have been able to cash in on the so-called heart balm torts, which are still legal in seven states. They are among the 23 states where adultery is illegal. In 2010, two spurned North Carolina wives sued their husbands' mistresses -- Cynthia Shackelford won $9 million and Dr. Lynn Arcara won $5.8 million. Before she passed away, Elizabeth Edwards was supposedly looking into using the alienation of affection tort to sue former aide Andrew Young for allegedly contributing to the demise of her marriage to John Edwards, who had a child with Rielle Hunter.
And that may be appropriate, Corbett says. If we believe that marriage is important, shouldn't we be able to punish those who try to destroy it?
Deans doesn't think it should stop at married couples, however. She wants the torts to cover cohabiting couples and other "quasi-marriages," since more people are seeking alternative committed relationships.
It seemed like a good time to talk to Corbett, who says he's been happily married for 26 years.
Q: What prompted you to write, "A Somewhat Modest Proposal to Prevent Adultery and Save Families"?
A: I realized not many people had written about criminal conversation and alienation of affection. Everybody likes to write about sex. In terms of societal values and tort law, it's interesting that states had abolished those torts while most people in society still claim that marriage and family is important and should be protected. I don't really argue that the torts would save many marriages ... but at the same time, we have many different purposes in tort law -- compensation, probably revenge -- and so it would not be completely inconsistent with what we do in tort law if we recognize a new version of those torts.
Q: Do you believe facing the possibility of a lawsuit will really stop someone from cheating?
A: That's one of about seven reasons courts would always tick off, "We're abolishing one or both of these torts because ..." It does not achieve deterrence because of the nature of the activity. What I always respond is, how do you know that? I think the answer is we don't know. That may be one's intuition ... but my guess is it's just as likely that the reverse is true. We recognize battery as a tort, and yet people get hit every day. That doesn't completely eliminate the conduct, but we have other reasons we recognize the tort anyway.
Q: Shauna M. Deans argues that your proposal didn't go far enough, and that the laws need to cover "quasi-marriages" such as cohabitation. Is your proposal indeed too modest?
A: One of the things that most troubled me about my own proposal ... and troubles me even more with her extension is that I propose that one would have to know about the marriage they were interfering with. That was not true with the old tort of criminal conversation. If you extend it beyond a marriage to other intimate relationships, I wouldn't know where to draw the line. If you have a boyfriend and girlfriend who claim to be committed and monogamous, does it cover that? It bothers me 1) on the knowledge component, which I would require, and 2) what would you have to know? If it's a marriage, you know that person's married or you don't. With other types of relationships, what are you going to have to find out?
Q: Most relationship experts say infidelity is just a symptom of other problems in the relationship. It would seem that those problems would be the real "interference," not the lover, and you can't sue over marital issues. Wouldn't that create problems for your proposal?
A: Like everything else in tort law, we allocate fault among the parties involved. It's my intuition, and the research backs it up, that when infidelity occurs, it's not just the fault of the other person, the outsider, but I'm not so sure that's an insurmountable problem in tort law.
Q: Why should the lover be penalized? Isn't that getting the spouse off the hook for his or her own sexual misconduct?
A: I don't know if it gets the spouse off of the hook because the spouse may very well get divorced, and whatever property arrangements come out of the divorce proceedings. They're likely to suffer some for the infidelity in jurisdictions that take that into account when determining alimony. The rationale would be that the third party ... interfered in an important relationship. It's not far-fetched to hold a party responsible where you say, well it's not all their fault. Sure they did something wrong, they did something that we would condemn, but they're not the only one responsible. ... I agree with that. But in tort terms, that doesn't bother me. It's not unlike a lot of other torts we recognize.
Q: In comparing marriage interference to business interference, you bring up an intriguing idea -- that if a spouse is able to "sample the sexual relations market" for better offers, he or she may reject them and thus save the marriage. Is that something society should seriously consider?
A: A number of people are doing just that. You may not like that in market exchange terms, because it sounds icily economic, but I'm not sure the analogy is very far off. I'm basically trying to compare a business tort that has to do with a relationship to the heart balm tort because I do see the torts as similar. They're both about relationships. A business can argue, "It's not my fault; I got this other customer from that business and I know it hurt him but it's OK, I'm just trying to compete and trying to make money." Well, there's a similar argument in relationships. I put them side-by-side and examined the rationales of why we still have a business interference tort but we don't have a marriage or family interference tort. Everybody says marriages and families are the most important things, but we're not protecting them by tort law like we do in business.
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