John Edwards has been a hot news topic in recent weeks, after he finally admitted that he had fathered a daughter with Rielle Hunter, a videographer on his 2008 presidential campaign with whom he had an extramarital affair. But his wife, Elizabeth Edwards, has now made news as well, with reports that she may be planning to file an "alienation of affections" lawsuit against her husband's former political aide Andrew Young.
The History of Heart-Balm Laws
Historically, most states recognized a collection of so-called "heart-balm" lawsuits. An action for "breach of promise to marry," for example, could be filed by a woman whose fiancé called off an engagement. (This action was technically unisex, but men virtually never filed such actions.) Although the jilted would-be bride may have suffered real emotional damage, the legal remedy was focused on a more tangible kind of harm – her ruined chance at marriage. As a result of the engagement, the theory went, the engaged woman might have wasted valuable time off the marriage market during her prime years, and the jilting may have scared off other suitors by proving her jilt-worthy. Worse still, she may have slept with the man to whom she had been engaged, or even gotten pregnant by him, which would have ruined her reputation and rendered her unmarriageable.
Another claim -- wrongful seduction --- could be made by a woman or her father against a man who "seduced and debauched" her, when she had been "previously chaste." It was assumed (for respectable women, anyway) that a chaste woman must have been tricked or fooled into sex—otherwise, she would not have consented to be "ruined."
"Criminal conversation," in turn, was a civil cause of action that dated back at least to the Seventeenth Century in England. The name is oddly inappropriate, since there was nothing criminal about the claim, and it certainly was not about conversation. Rather, "Crim. Con." allowed a man to bring suit against another man who had sex with his wife. It was a remedy for loss of the wife's "consortium" (that is, of the companionship and sex she had provided before being seduced by another). Proof of a valid marriage and extramarital sex were all that was required for the husband to make out a successful claim against the interloper.
Finally, "alienation of affections," like criminal conversation, was an action for interference with a marriage. But here, the claim was broader than a claim for criminal conversation, and was not necessarily about adulterous sex. Anyone who destroyed the relationship between two spouses – a meddling mother-in-law, a friend or paramour, or the like – could potentially be on the receiving end of an "alienation of affections" claim.
Interestingly, this claim was only made against the alleged interferer—not against the other spouse, even if that spouse was deeply involved with the "interference." The other spouse's consent to—or even eagerness about—the deception was no defense.
This final type of claim, readers will recall, is the one Elizabeth Edwards has made against Andrew Young. And the nature of the claim prevents John Edwards from being named as a co-defendant with Young.
The Fall of Heart-Balm Laws
Heart-balm actions flourished in the Nineteenth Century and into the early Twentieth Century. Cases were far from rare; and juries were often quite generous with their awards. Together with laws criminalizing sex and cohabitation outside of marriage, and restricting access to divorce, these causes of action were supposed to help support good morals and bolster the strength of traditional marriage. They also were intended to protect women—those weak, delicate creatures—from the cads who took advantage of them.
But over the course of the Twentieth Century, heart-balm laws were abolished virtually everywhere in America. Shoring up marriage and protecting delicate and innocent women from temptation and debauchery were still strong policies. But the images of womanhood that had provided the impetus for these policies lost ground to powerful images of women that were the very opposite: images of designing women; gold-diggers; blackmailers; temptresses; and women who used the law to compensate for their own indiscretions or to bilk foolish, gullible men with deep pockets.
One by one, state legislatures got rid of heart-balm laws. New York and eight other states had abolished all heart-balm actions by the end of the 1930s. Several other states followed suit in the decades that followed. Courts, too, got in on the action, sometimes "repealing" heart-balm causes of action by judicial fiat. The highest court in Washington abolished suits for alienation of affection in 1976; the highest courts in Idaho and Iowa followed suit in the 1980s.
By the turn of the Twenty-First Century, most states had done away with heart-balm lawsuits altogether, or had imposed severe restrictions on them. The suits themselves, too, had become extremely rare. They seemed anachronistic in an era in which sexual freedom reigned (as it still reigns) supreme. The notion that premarital or extramarital sex is a wrong for which the law should provide a monetary remedy is seriously out of place in the age of widespread cohabitation by unmarried couples. Moreover, most states long ago got rid of laws making adultery and fornication crimes, and that change in views demanded a change as to heart-balm claims as well.
The Claim for Alienation of Affections, As Defined By North Carolina Law
Now, the Edwardses' state, North Carolina, is one of only seven in which the "alienation of affections" claim survives. (The others are Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah.) Even in these states, the rationale for the claim has shifted. Sexual purity and the exclusive rights of husbands no longer seem to provide an adequate justification for the heart-balm claims. Thus, in these last seven states, the "alienation of affections" claim is defended (if anybody bothers defending it) as a device to preserve marital stability.
North Carolina has stuck by other heart-balm actions – besides actions for alienation of affections -- as well. Courts continue to recognize an action for criminal conversation and, as one of us (Joanna Grossman) has explained in a previous column, an action invoking the tort of wrongful seduction. Although bills to abolish heart-balm laws have been periodically introduced in the North Carolina legislature, none, yet, has become law. (The most recent bill, NC H.B. 1123, was introduced in April, 2009).
In 1985, in Cannon v. Miller,an intermediate appellate court in North Carolina attempted to abolish suits for alienation of affections and criminal conversation. After an extensive review of the cause of action and its historical roots, the court concluded that "there is no continuing legal basis for the retention of these tort actions today." But that court was quickly rebuked by the North Carolina Supreme Court – which sharply disagreed, and vacated the opinion, with a stern reminder that the lower court did not have the authority to refuse to apply precedents of the higher court.
In sum, then, the tort of alienation of affections is alive and well in North Carolina – where Elizabeth Edwards may soon invoke it.
What Elizabeth Edwards Must Prove to Win Her Suit Against Andrew Young
If Elizabeth Edwards does sue Andrew Young, what will she have to prove to win her case? A three-pronged test sets out the requirements.
To prove "alienation of affections," she must show three things: (1) that she and John were "happily married and that a genuine love and affection existed between them"; (2) that the "love and affection was alienated and destroyed"; and (3) that the wrongful and malicious acts of Andrew Young produced the alienation of affections." In other words, the evidence must show that Young, by acting badly, ruined the Edwardses' marriage.
Each of these three prongs, however, has been construed loosely by North Carolina courts. For example, a 2006 case, McCutchen v. McCutchen, made clear that the marriage at issue need not have been perfect or even happy, but need only have included some affection. The court in that case also held that the statute of limitations does not begin to run until the "alienation is complete." Thus the plaintiff-wife in that case was permitted to sue over an affair that had begun many years earlier.
Likewise, the malice requirement has been construed broadly, to include nothing more than inviting affection from a married person. And, in the case of adultery, the participating spouse's consent is irrelevant to the cause of action – even if the participating spouse fully consented, the third party is just as liable to the innocent spouse for stealing the affections of a married person. Punitive damages might also be available for "alienation" that includes sex.
The tort of alienation of affections is surprisingly vibrant in North Carolina (though almost nowhere else). These claims seem to appeal to juries, as well as to the appellate courts that review their verdicts. In 1997, a North Carolina jury ordered the "other woman" to pay Dorothy Hutelmyer more than a million dollars after Dorothy's husband, Joe, told her he was leaving her, and taking up with his secretary. (This case was turned into a Lifetime television movie in 1999, "The Price of a Broken Heart," starring Laura Innes of E.R. fame.)
In a later North Carolina case, Oddo v. Presser, a wrestling coach sued a man who had "engaged in sexual intercourse at a hotel" with the coach's wife. The jury awarded the husband $910,000 in "compensatory damages" and $500,000 in punitive damages. In 2006, George Berg, who had been tipped off about his wife's affair by a comment from his five-year old son, sued his wife's lover; the man settled out of court for more than $150,000. But the record seems to be held by Christine Stalas Cooper, to whom a judge awarded $2 million in an alienation case against her husband's mistress.
This legal "relic," then, is no joke—or, at any rate, defendants in North Carolina are not laughing. According to one law firm's website, about 200 alienation-of-affections actions are filed each year in North Carolina; and many of these throw in a claim for criminal conversation as well. In North Carolina, in short, it can be quite a risky business, financially speaking, to carry on an affair with a married man or woman.
(Mississippi is not a great state to have an affair in, either. The Supreme Court recently abolished actions for criminal conversation, but specifically withheld judgment on actions for alienation of affections. In a 2007 case, Fitch v. Valentine, the state's highest court upheld a jury verdict for more than $750,000 based on an affair between a woman and her boss. And just last year, the wife of Republican Congressman Chip Pickering filed a complaint for alienation of affections against a woman with whom he allegedly had an affair.)
The Possible Lawsuit by Elizabeth Edwards: Why a Suit Against Rielle Hunter Might Be Stronger than One Against Andrew Young
Interestingly, there are no news reports suggesting that Elizabeth Edwards may also sue John's lover, Rielle Hunter, for alienation of affections. The only possible suit that has been reported is one against aide Andrew Young.
That is very curious – for Hunter is a more logical plaintiff than Young, and the case seems like a possible slam-dunk. John's confession that he is the father of Hunter's child certainly seems good enough to prove extramarital sex, which is all that is required to succeed in a suit for criminal conversation. Moreover, the same evidence would go a long way towards establishing alienation of affections, too.
What about the possible suit against Young? Granted, there is no apparent restriction in the case law on the type of third party who can be sued, or the particular role that person must play in destroying a marriage. Doctrinally speaking, an "alienation of affections" suit can be brought against any third party who interferes with an affectionate marriage. But most plaintiffs in prior North Carolina cases have sued their spouses' paramours (here, Hunter) or close relatives (and Young has no relation to either of the Edwardses). So Young would be a somewhat odd defendant for Elizabeth Edwards to choose.
And with respect to the third prong of the test – that Young's actions produced the alienation of affections – Young's lawyer could attempt to argue that is was really Hunter, not Young, who caused the Edwardses' estrangement. Young has suggested to reporters that his actions were designed to strengthen, rather than undermine, the Edwardses' marriage.
Still, there would be some strengths to a suit against Young. Most promisingly, Young seems have to admitted in his recent tell-all book, The Politician, and in media interviews that he did actively cover up the affair between Edwards and Hunter. Is this evidence enough to satisfy the three-prong test mentioned above? In the end, a North Carolina jury may have to decide.
Even Those Sympathetic to Elizabeth Edwards Should Think Hard Before Supporting Such a Lawsuit
Most readers, probably, will agree that John Edwards was something of a cad. Poor Elizabeth—seriously ill, raising young children, and faithful to her husband—is an attractive victim. But it is one thing to sympathize with Elizabeth, and quite another thing to approve of this kind of ancient, dubious lawsuit—and people might feel, too, that she picked the wrong defendant.
Maybe it is time for North Carolina to join most of the rest of the country, and put these dying causes of action out of their misery. We have another strong legal system to deal with married couples' estrangements – and it's called divorce court.
Lawrence M. Friedman is the Marion Rice Kirkwood Professor of Law at Stanford University and an internationally renowned legal historian. His most recent book is Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Stanford 2009).
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