Chloe Knue, Associate Member, University of Cincinnati Law Review
In North Carolina, all is not fair in love and war. The state made headlines in outlets like the Washington Post when “[a] woman’s [lover] [was] . . . ordered to pay $750,000 in damages to her ex-husband.” These damages were ordered to compensate for the ex-husband’s broken heart. North Carolina is one of eight U.S. states to recognize “heart balm”torts. Nothing hurts like a broken heart, so why not be able to recover for one? There are two types of “heart balm” torts a scorned spouse can use to recover: alienation of affections and criminal conversation.
A plaintiff claiming alienation of affection has the burden to prove three elements: “(1) a marriage with genuine love and affection; (2) the alienation and destruction of the marriage’s love and affection; and (3) a showing that defendant’s wrongful and malicious acts brought about the alienation of such love and affection.” The claim can even hold liable parties beyond the wrongful spouse! “As an example, [a North Carolina attorney] said a person could sue his or her mother-in-law if the mother-in-law was successful in persuading her child to divorce their spouse.”
The second tort is called criminal conversation. “Conversation” is a judicially savvy way of saying sexual intercourse. This cause of action is even easier to prove than alienation of affections because a scorned plaintiff need only show: “(1) [a] marriage between the spouses and (2) sexual intercourse between the defendant and the plaintiff’s spouse during the marriage.” Section II will explain the relevant case law. Section III argues that although the “heart balm” torts might be constitutional, they should be abolished.
II. Case Law
In Heller v. Somdahl, Mr. Heller fell victim to cuckoldry. Rather than hold his wife accountable, he brought suit against his wife’s friend Ms. Jones for alienation of affections. At trial, the jury awarded Mr. Heller compensatory and punitive damages and Ms. Jones appealed. The court of appeals went through each of the three elements to determine whether Mr. Heller set forth some evidence in support of his claims. First, the court found sufficient evidence that Mr. and Mrs. Heller had a marriage with genuine love and affection before the affair. Friends testified that “the couple had a ‘warm, loving relationship’” and Mr. Heller put on the record how many times a week him and his wife engaged in intimacy. Second, the court found enough evidence that the love and affection had been destroyed. For example, there was evidence that Ms. Heller seemed “‘distract[ed]’”conversing with Mr. Heller while he was deployed overseas. Finally, Mr. Heller proved “[m]alicious [c]ausation[.]” The court found the following evidence to be sufficient: Ms. Jones had interfered with conversations between Mr. and Mrs. Heller, she gave Mrs. Heller alcohol even though she did not handle alcohol well, and she threatened to harm Mrs. Heller and her family if she did not commit to her lover, the defendant, Mr. Somdahl. Because there was evidence to satisfy each element, the court of appeals affirmed the decision of the trial court.
In the next case, Malecek v. Williams, the plaintiff did not challenge the sufficiency of the evidence. Instead, Dr. Williams argued that the “heart balm” torts were facially unconstitutional. Dr. Williams met the plaintiff’s spouse at a hospital where she was employed as a nurse, and they engaged in an affair. First, Dr. Williams brought a substantive Due Process challenge where he relied on Lawrence v. Texas. In Lawrence, the Supreme Court recognized a same-sex couple’s right to engage in sex in the privacy of their own home. Similarly, “Dr. Williams . . . argue[d] that alienation of affection and criminal conversation offend[ed] the Due Process Clause of the Fourteenth Amendment by restraining one’s liberty to have intimate sexual relations with another consenting adult.” The court ascertained the following rule from Lawrence: “the Fourteenth Amendment generally prohibits States from regulating private, consensual activity ‘absent  injury to a person or  abuse of an institution the law protects.’” Because the court weighed the state interest in preventing personal injury to the heart and protecting the institution of marriage more heavily than the burden on the liberty interest, the court held that the “heart balm” torts are constitutional under the Fourteenth Amendment.
Second, Dr. Williams argued that his rights to free speech, expression, and association were improperly burdened under the First Amendment. The court found that the United States v. O’Brien test applied because the regulation was content-neutral. According to Clark v. Community for Creative Non-Violence, “[t]his type of content-neutral law will be upheld if ‘ it is narrowly drawn to further a substantial government interest, and  if the interest is unrelated to the suppression of free speech.’” Because the court had already recognized a substantial government interest under substantive due process, the only question left was whether the restriction was unrelated to the suppression of free speech. The court reasoned, “these torts are intended to remedy harms that result when marriage vows are broken, not to punish intimate extra-marital speech or expression because of its content.” For that reason, the “heart balm” torts were upheld under the First Amendment, and Dr. Williams was forced to prepare for trial.
In Rodriguez v. Lemus, the court clarified two aspects of “heart balm” tort law. First, circumstantial evidence is sufficient proof. Second, “although these torts impose liability only for conduct occurring before a married couple has separated, evidence of post-separation conduct is competent to support findings of pre-separation conduct.” Ms. Rodriguez was married to Mr. Jimenez when “[she] began to notice her marital relationship change.” She found calls and text messages exchanged between her husband and a family friend, Ms. Lemus. Ms. Rodriguez also found suspicious hotel receipts. The issue was whether Ms. Rodriguez could prove sexual relations by circumstantial evidence and bolster this evidence with proof that Mr. Jimenez and Ms. Lemus engaged in sex after Ms. Rodriguez and Mr. Jimenez separated. For the reasons stated above, she could. The trial court verdict awarding Ms. Rodriguez $65,000 was allowed to stand.
The “heart balm” torts were created in the 18th century to hold individuals legally responsible for sleeping with the other person’s spouse. This is problematic for a number of reasons. First, it falsely presumes that one spouse is a passive participant. As the saying goes, it takes two to tango. An extra-marital affair should be properly addressed within a marriage between the two partners. One partner should not be able to use the court system to point a finger at anyone other than the person with whom he or she took a vow of monogamy. Second, it puts a numerical value on sex with the plaintiff’s spouse. Reimbursement for sex is outlawed in 49 states. Additionally, if the court valued the institution of marriage, it would not allow a plaintiff to quantify intimacy with his or her spouse. Because marriage is sacred and the other person becomes your life partner, no arbitrary dollar figure should be placed on the value of that relationship. It is invaluable.
It is also important to emphasize that these cases are public record. That means that friends, family, and co-workers will learn intimate details about the plaintiff’s marriage. Is there any amount of money worth telling the entire world how many times a week you were intimate with your spouse before he or she cheated on you? This type of evidence can also have a negative impact on a couple’schildren. They will eventually become old enough to investigate the demise of their parents’ marriage. Not only may they be inclined to pick sides, but at the very least they will know that their Dad filed a lawsuit over their Mom’s infidelity. Additionally, bringing a lawsuit for a “heart balm” tort is expensive. For example, in the case detailed in the Washington Post article, “[an attorney’s] contemporaries estimate[d] that [the plaintiff] probably spent $10,000 to $75,000 in attorney fees alone over the two years and . . . it is unlikely he will pocket the judgment amount.” This is a selfish action if the plaintiff has children. This money would be better spent on things like child care, education, and medical expenses.
Nonetheless, it will be difficult to get rid of these torts. They arguably do pass constitutional muster, and courts so far have ruled that they indeed are constitutional. The judicially created tests in Lawrence and O’Brien/Clark first ask whether there is a substantial state interest. The court in Malecek said that preventing personal injury and preserving the sanctity of marriage is a substantial state interest. This is a persuasive argument; when a marriage is broken apart, especially due to infidelity, the children suffer the most. This can take an emotional toll on a child or limit the opportunities available to them due to greater financial strain. Additionally, the “heart balm” torts do serve as deterrents to people considering sleeping with another man or woman’s spouse. No one wants to owe $750,000 or more in damages.
The more difficult question is whether the speech is really content-neutral. The Malececk court claims that the speech is content-neutral because the torts aim to preserve marriage vows, not to prevent extra-marital affairs. This argument is pretty strong within the context of alienation of affection. The court stated, “[i]f the defendant’s actions deprived a married person of the love and affection of his or her spouse, the State will impose liability regardless of what the defendant actually said or did.” But this argument has less force in the context of criminal conversation. The only way this tort can be committed is by sleeping with another’s spouse. In this way, it does seem to be content-based as it is directly aimed at the actual content, the extra-marital affair. If a court is willing to look under the fig leaf, criminal conversation could be abolished. But alienation of affections would likely survive.
In 2019, people are accused of being “too soft,” as if that accusation is a recent development; however, it is unlikely that people are more sensitive now than in the 18th century. These “heart balm” torts arose when one spouse sought to summon the powers of the state after being cheated on by their spouse. What Mr. Heller, Mr. Malecek, and Ms. Rodriguez went through was undoubtedly incredibly painful, but these emotional situations are better suited for personal resolution rather than a judicial remedy. Courts should not be bogged down with cases about whether the defendant slept with the plaintiff before or after a specific date. Adjudicating matters of the heart should not be the province and duty of any state court.
Lateshia Beachum, His wife cheated on him. So he sued the other man for #750,000 —and won., Washington Post (Oct. 4, 2019), https://www.washingtonpost.com/nation/2019/10/03/his-ex-wife-cheated-him-he-sued-other-man-won/.
Heller v. Somdahl, 696 S.E.2d 857, 860 (N.C.App. 2010) (citing Litchfield v. Cox, 146 S.E.2d 641, 641 (N.C. 1966)).
Beachum, supra note 1.
Id. (citing Ashley-Nicole Russell, esq.).; see also Heller, 696 S.E.2d at 861 (quoting Peake v. Shirely, 427 S.E.2d 885, 887 (N.C.App. 1993) (“‘There must be active participation, initiative, or encouragement on the part of the defendant in causing one spouse’s loss of the other spouse’s affections for liability to arise.’”).
Beachum, supra note 1 (citing Ashley-Nicole Russell, esq.).
Rodriguez v. Lemus, 810 S.E.2d 1, 3 (N.C. App. 2018) (citing Coachman v. Gould, 470 S.E.2d 560, 563 (N.C. App. 1996)).
Heller, 696 S.E.2d at 859-60.
Id. at 860.
Id. at 862.
Id. at 860.
Id. at 862.
Id. at 861.
Id. at 861-62.
Id. at 861.
Id. at 862.
Malecek v. Williams, 804 S.E.2d 592, 594 (N.C.App. 2017).
Id. at 595 (citing Lawrence v. Texas, 539 U.S. 558, 578 (2003)).
Id. (quoting Lawrence, 539 U.S. at 567).
Id. at 595-97 (citing Misenheimer v. Burris, 637 S.E.2d 173, 176 (N.C. 2006)).
Id. at 597.
Id. at 597-98 (citing United States v. O’Brien, 391 U.S. 367, 376-77 (1968)).
Id. at 598 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984).
Id. at 598-99.
Rodriguez v. Lemus, 810 S.E.2d 1, 2 (N.C. App. 2018).
Id. at 4 (quoting In re Estate of Trogdon, 409 S.E.2d 897, 900 (N.C. 1991)) (“Adultery is nearly always proved by circumstantial evidence . . . as misconduct of this sort is usually clandestine and secret.”).
Id. at 2.
Id. at 3-5.
Id. at 2, 5.
Id. 2-3, 5-6.
Beachum, supra note 1 (“These ‘heart balm’or ‘homewrecker’laws, which date to at least the 18th century, allow for someone to sue for damages incurred when a third party breaks up a happy home.”).
Malecek v. Williams, 804 S.E.2d 592, 596 (N.C. App. 2018) (“Among the most central vows in a marriage is the promise of fidelity.”) (citing Obergefell v. Hodges, 135 S.Ct. 2584, 2608 (2015)).
US Federal and State Prostitution Laws and Related Punishments, ProCon.Org, https://prostitution.procon.org/view.resource.php?resourceID=000119#3 (last visited Nov. 3, 2019) (“Prostitution is illegal in the United States with the exception of 10 Nevada counties.”).
Beachum, supra note 1 (“‘Once you file this case and talk about your child’s mother or father or whoever it was that cheated on you, it becomes public record and your kids see that,’ she said, noting that she often stressed the significance of these filings to her clients. ‘One of these days, your kids are going to get a copy of this.’”) (quoting Kellie Chappell-Gonzalez, esq.).
Id. (“The discovery phase, filing depositions and hiring private investigators can add up for clients . . .”).
Malecek, 804 S.E.2d at 596 (“Moreover, the State’s interest in preserving these torts is strong. As explained above, these torts deter conduct that causes personal injury; . . .”).
Id. at 598.