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:

This fault, which used to be called adultery and unnatural sex acts (arguable more narrow concepts), can be a useful fault ground. Unlike many of the grounds, adultery can have no legal justification – proof of the act will establish fault. Adultery may be proved by direct evidence, including the declarations of the paramour and (since 1984) the admissions of the adulterous spouse. Adultery may also be proved by circumstantial evidence. The evidence of adultery, whether direct or circumstantial, “must tend to show both opportunity, an issue of adultery should not be submitted.” Opportunity is some situation or circumstance in which the party and the paramour are alone and unsupervised; and the setting would suggest amorous activities. Inclination is the expression of feelings of love and affectionate behavior between the party and the lover. The evidence of opportunity was abundant in one of the well-known reported cases and included the following: observation of husband and woman leaving his farm house together at 10:30 a.m., their entering a residence together and staying for two hours, eating together in a restaurant, entering the same motel at separate times with both their cars remaining there throughout the night, driving together, and spending a night together in a husband’s condominium, entering and leaving the condo separately. Those facts were not, however, sufficient to prove adultery because there was insufficient evidence of inclination. If the case contains such facts of opportunity without evidence of inclination as well, these facts may still be sufficient for establishing indignities arising from a spouse’s association with a member of the opposite sex.

George K. Saleeby

United Investigative Services

3600 Glenwood Ave Raleigh, NC 27612

Lic #1391