Fanning an Old Flame: Alienation of Affections and Criminal Conversation Revisited

Abstract

This Comment seeks to analyze the torts of criminal conversation and alienation of affections, both historically and in light of the growing national interest in providing further protections for marriage, as evidenced by the debate spawned by Louisiana's new "covenant marriage" law. Part II of the Comment briefly traces the history of the torts from ancient times to modem American abolition of them in the majority of states. Part III identifies and addresses the criticisms most often cited as reasons for the abolition of the torts and analyzes the merits of those criticisms. Part IV discusses arguments in favor of the torts, including the idea that problems with the torts may be corrected by judicial or legislative tinkering. Part IV further points out that, while most commentators acknowledge the important goals that the torts purport to further, critics believe that the torts do little to promote their goals, resulting in an absence of adequate safeguards for marriage. While this Comment does not deny the truth of many of the torts' criticisms, it does suggest that a more hearty attempt to correct the shortcomings of the torts should be considered, rather than the repetitions of earlier judicial criticisms that pervade many of the statutes and opinions abolishing the torts.

A consistent theme throughout this Comment is that the decision to retain, modify, or abolish actions for criminal conversation and alienation of affections rests in a philosophical question for lawmakers. The philosophical objections to the torts are difficult to rebut because they are based upon fundamental, subjective views of the very nature of human beings and the institution of marriage. Any attempt to avoid the philosophical implications of the torts, by justifying them on simple contract or property principles, must fail because those fields do not adequately describe the marital state. The more legislators modify these torts, shaping them to best protect the rights of both the jilted plaintiff and the accused, the closer the torts resemble a "fault divorce" model. Thus, legislators must decide whether "family values" are a sufficiently important goal to justify a back-door infusion of fault in divorce actions along with the problems critics assert accompany fault divorce actions and these torts.

This Comment concludes that, based upon the long history of anti-adultery legislation leading to the torts of alienation of affections and criminal conversation, it is incredible that the majority of states and legal commentators conclude that the problems associated with laws seeking to protect family relationships justify throwing them out completely, leaving deserted spouses with no legal remedies other than the right to divorce and receive no more support than an errant spouse in a similar position.