An updated tort of adultery could look something like the document below the fold. This tort (drafted for Minnesota, don't ask me why) could be either expanded to include "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery," or we could choose to limit it to commerical enterprises. Such a tort would not prevent websites from facilitating hookups that include adulterous ones. It would prevent them from explicitly incorporating adultery into their advertising plan.
– DRAFT –
Minn. Stats. sec. 517.23. Intentional interference with marriage.
A person is liable for damages to a spouse for intentional interference with the spouse’s marriage [marital relationship] that causes injury to the spouse. An act of adultery between the defendant and the spouse of the plaintiff when the defendant knew or should have known that the plaintiff’s spouse was married shall constitute proof of intentional interference with the plaintiff’s marriage. [Damages awarded pursuant to this statute shall not exceed $500,000. This action shall be instituted within two years of the discovery of the adultery.]
COMMENTARY
(a) This proposed new tort reflects the policy articulated in Minnesota Const., art. I, sec. 8: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive. . . .” Allen v. Pioneer Press Co., 40 Minn. 117, 122, 41 N.W. 936 (1889) (constitutional section is merely declaratory of general fundamental principles and leaves to legislature a wide range of discretion). It resembles the widely recognized action of tortious interference with contract, the contract in this case being the contract of marriage. Despite some similarities between this new tort and the common law actions for alienation of affections and criminal conversation, there are distinct differences: this action is much narrower in scope and explicitly provides in the statute for proof of what constitutes intention and interference. See Lockwood v. L, 67 Minn. 476, 70 N.W. 784 (1889).
(b) Intentional interference with a marriage simply requires proof that the act of adultery, which constitutes sexual infidelity and breach of the marriage “contract,” occurred at or after the defendant has or should have knowledge that the person with whom he or she is having sexual relations is married.
(c) Proof of interference in a marriage consists statutorily of proof of an act of adultery, sexual infidelity. During marriage, spouses owe to each other fidelity, because marriage is a monogamous, sexually exclusive relationship, distinguishing marriage from a dating or cohabiting relationship.
[(d) This statute includes a specific cap on damages, which does not violate Minn. Const. art. I, sec. 8. See Schweich v. Ziegler, Inc., 463 N.W. 2d 722 (1990), rehearing denied. Furthermore, the statute of limitations contained in this statute assures that the plaintiff must act within two years of discovery of the injury and resulting damage. See Lourdes High School of Rochester, Inc. v. Sheffield Brick & Title Co., 870 F.2d 443 (8th Cir. [Minn.] 1989).]
NOTES
(1) This proposed new tort borrows not only from the common law tort of alienation of affection and the crime of criminal conversation (only nine states recognize one or both) but also from an analogy to the tort of intentional interference with a contract. It reduces the ambiguity of the alienation of affection action and adopts many of the elements of the criminal conversation statutes that had to be narrowly drawn because they punished conduct criminally. Its relative virtues include: (1) narrowly drawn remedy for injury to a marriage which presently is uncompensated; (2) exclusive definition of interference as an act of adultery, sexual relations with the spouse of the plaintiff, which eliminates difficult issues of causation; (3) intentional defined as simply sexual relations with the plaintiff’s spouse with knowledge (actual or presumed) that he or she is married.
In the American Law Institute’s Principles of the Law of Family Dissolution, the Reporters urge that rather than judge the moral relations of spouses in the divorce law, tort law and to a lesser extent criminal law should offer remedies. ALI Principles of the Law of Family Dissolution, sec. 5.02(2) (“Losses are allocated under this Chapter without regard to marital misconduct, but nothing in this Chapter is intended to foreclose a spouse from bringing a claim recognized under other law for injuries arising from conduct that occurred during the marriage.”); see also id. at Chapter 1, § 2. Increasingly, because divorce law does not provide sufficient remedies for a spouse who has been injured by the conduct of the other spouse or a spouse with another person, the law of tort offers the possibility of redressing a wrong that injured another, for example, recovery for fraudulent inducement to marry, communication during marriage of a sexually transmitted disease due to infidelity during marriage, violence during marriage resulting in physical injury to a spouse. This statutory tort reflects this same trend by providing a remedy for another case where the law of marriage and divorce fails to acknowledge and redress an injury to a spouse and the marital relationship.
(2) Need for this remedy: damage to an individual marriage and to the social institution of marriage that anchors the family. See William R. Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33 Ariz. L. J. 987 (2001).
(a) As with many torts recognized within the last seventy-five years, this tort permits recovery for emotional and relational harms. Marriage and family relationships, among society’s most important, have been left unprotected by comparison to economic and employment relationships. Currently grievous wrongs are suffered leaving people with the belief that they are victims and the law provides no redress. It so happens that women, rather than men, suffer more from adultery simply because more married men engage in adultery (Eric Rasmussen, An Economic Approach to Adultery [http://www.law.harvard.edu/programs/olin_center.html]) and if adultery leads to divorce as it often does, then collateral losses to women are often greater (economic). Men, however, suffer greater emotional injury from their wives’ adultery.
(b) Despite the dominance of “no-fault” divorce laws, the spouses themselves continue to think in fault terms and to attribute blame to their spouse. What they discover is that the promises the other spouse made at the time of marriage, the law and the court will not enforce. James Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth Century America (1997).
(c) Infidelity continues to be the most frequently cited reason for obtaining a divorce. Paul Amato & Denise Previti, People’s Reasons for Divorcing: Gender, Social Class, the Life Course, and Adjustment, 24 J. Fam. Issues 602 (July 2003).
(d) “Permanent availability,” as described by Norval Glenn in the Journal of Marriage and the Family, describes the cultural phenomenon of continual examination even of those persons who are married as a potential mate, a phenomenon influenced by easy, quick “no-fault” divorce. Norval D. Glenn, “The Recent Trend in Marital Success in the United States,” 53 J. Marriage & Fam. 261, 268 (quoting Bernard Farber, “The Future of the American Family: A Dialectical Account,” 8 J. Fam. Issues 431 (1987).
(e) Traditional remedies for adultery, in fault-based divorce law, establish the principle that spouses have an obligation of fidelity to each other. This tort establishes that others, outside of the marriage bond, have an obligation to respect that pledge of fidelity as well, by not engaging in sexual relationships with someone else’s spouse.
