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Alienation of Affection and Criminal Conversation

Criminal Conversation:

Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff’s spouse. Criminal conversation is something like a “strict liability tort” because the only things the plaintiff has to proved are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff’s spouse. It is not a defense that: the defendant did not know the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff “consented” to illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.As with a criminal conversation action, it is not a defense that the non-innocent spouse consented to defendant’s conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

Alienation of Affection:

An action for alienation of affection, on the other hand, does not require proof of extramarital sex. Despite this difference, an alienation claim tends to be more difficult to establish because it is comprised of more elements and there are some additional defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeable impact on the marriage. Thus, defendant has a defense that the object of his or her affections was in fact married.

Illicit Sexual Behavior: