Alienation of Affection

The Supreme Court of Missouri just issued a decision abolishing the tort known as "alienation" of affection, which formerly allowed a wife to sue the woman who committed adultery with her husband. (Men could sue as well, of course; I just couldn't figure out an elegant way to phrase the previous sentence so as to be gender-neutral.)

I'm not convinced by the court's reasoning, although there might be other good reasons to abolish that particular tort. Here are the court's main arguments:

In order to ensure pure bloodlines and discourage adultery, the early Germanic tribes provided that men were entitled to payment from the wife's lover so that the husband could purchase a new spouse. Hoye v. Hoye , 824 S.W.2d 422, 423-424 (Ky. 1992); Bruce V. Nguyen, Note, Hey, That's My Wife! - The Tort of Alienation of Affection in Missouri , 68 M O. L . R EV . 241, 243, 244 (2003). As successors to the Germanic tradition, the Anglo-Saxons also provided a cause of action for men to recover for another's interference with the marital relationship. The basis for this cause of action was that wives were viewed as valuable servants to their husband. Id .
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Beginning with New York in 1864, almost every state in this country eventually established a cause of action for alienation of affection in which men, but not women, could vindicate their rights in the marital relationship. Prosser and Keeton, supra, at 918. In the late nineteenth and early twentieth centuries, most states, including Missouri, acted to equalize the legal status of wives by allowing them to sue in their own names. Therefore, the original justification for the tort, that husbands had a property right in their wives, was undermined. Hoye, 824 S.W.2d at 424. Nonetheless, the tort persisted, but with a new rationale. Modern courts came to justify suits for alienation of affection as a means of preserving marriage and the family.
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The original justification for the tort of alienation of affection lies in the antiquated concept that husbands had a proprietary interest in the person and services of their wives. Although modern courts no longer justify the tort of alienation of affection in these terms, the tort has remained fundamentally unchanged since its establishment in Missouri. The elements are the same. The defenses are the same. Because there has been no structural change to alienation of affection claims since its inception, the tort remains grounded in the property concepts that originally justified it. Hoye, 824 S.W.2d at 425, quoting, H. Clark, THE LAW OF DOMESTIC R ELATIONS IN THE UNITED STATES, SECTION 4.2, P. 267 (1987).

This idea "is perhaps better suited to an era that regarded one spouse as the property of another." Hoye, 824 S.W.2d at 425, quoting Prosser and Keeton, supra, at 917. It has no place in modern jurisprudence.

I don't follow this reasoning at all. Yes, in past centuries the tort of alienation of affection was supported by the idea that the husband owned his wife. Yes, we no longer agree with that concept of marriage. But, as the court itself admits, that justification was abandoned at least a hundred years ago, when states started allowing women to sue as well. Why must a tort be abolished now because of what people thought hundreds of years ago? Where does the court get this bizarre notion that the "wife as property" justification, even though abolished many decades ago, is still somehow lurking somewhere behind this particular tort?

Here's the court's second reason:

Even though the original property concepts remain inextricably bound to the tort, some still argue that suits for alienation of affection must be retained as a useful means of preserving marriages and protecting families. See, Norton, 818 p.2d at 12 (Utah 1991); Thomas v. Siddiqui,, 869 S.W.2d at 743 (Mo. banc 1994) (Robertson, J., dissenting). While these are laudable goals, it is unlikely that suits for alienation of affection actually serve this purpose. Thomas v. Siddiqui, 869 S.W.2d at 742 (Price, J., concurring). To the contrary, the opposite is likely true. Funderman v. Mickelson , 304 N.W.2d 790, 791 (Iowa 1981); Nguyen, supra, at 253.

First, suits for alienation of affection are almost exclusively brought after the marriage is either legally dissolved or irretrievably broken. Revenge, not reconciliation, is the often the primary motive. O'Neil v. Schuckardt , 733 P.2d 693, 697-698 (Idaho 1986); 54 A M. J UR. P ROOF OF F ACTS 3D Proof of Alienation of Affections , section 6 (1999).
Second, by filing suit, the plaintiff is publicly acknowledging the intimate details that led to the breakdown of the marriage. The necessarily adversarial positions taken in litigation over intensely personal and private matters does not serve as a useful means of preserving the marriage.

This makes even less sense. The court focuses myopically on the fact that, viewed from the ex post perspective, a tort lawsuit won't reconcile the parties. But the court completely ignores the fact that, from the ex ante perspective, the threat of a tort lawsuit might have some deterrent effect. Deterrence is one of the classic justifications for tort law, after all. It might not deter perfectly, but no tort cause of action deters perfectly. (The court says, "Revenge, not reconciliation, is often the primary motive," but so what? Any tort action might be brought, at least in part, for purposes of revenge.)

The same reasons would lead one to abolish the tort of interference with contractual relations, where one business sues another for interfering with an existing contractual relationship. You could say all the same things: Suing won't reconcile the original parties to the business contract, and such a lawsuit might be brought in a spirit of revenge. Yet our legal system thinks that existing business contracts are worthy of at least some minimal protection, and that we should deter people from trying to induce other people to breach a contract. Why not give marriage that same baseline protection? Why not give jilted wives the same legal remedy that corporations have?

The court also says that exposing intimate details of the marriage won't serve the purpose of reconciliation -- which, again, might be true, but from the ex ante perspective, the threat that intimate details might be revealed might be enough to deter the would-be adulterer. Plus, this rationale would likewise justify the abolition of the tort for interference with contract (after all, such lawsuits might lead to the discovery of a business's trade secrets, etc.)

The court's third reason was that it had previously abolished a closely-related tort called "criminal conversation," and that it should abolish alienation of affection in order to be "consistent." Maybe so, but if the abolition of "criminal conversation" was in error, consistency is not a sufficient reason to compound the error.


I'm not saying that alienation of affection lawsuits are necessarily a good idea, and there might be good reasons to abolish that particular tort. But if abolition is the chosen course of action, the court should at least have a good explanation. Most importantly, the court should explain why interference with a marriage contract should be wholly without legal remedy, while interference with a business contract can be the basis for a lawsuit.