Criminal Conversation

Yes, North Carolina is one of a handful of states that allow a lawsuit to be filed against a
third party for their involvement in the breakup of the marital relationship. Constitutional
challenges continue to be regularly argued against these torts seeking to have them
abolished. However, these efforts have been denied to date although the evidentiary
requirements have tightened. The filing party must prove that conduct occurred prior to
date of separation of the married couple and there is a three year statute of limitations to
file these claims.


Alienation of affections and criminal conversation claims have similar elements. Both are
“torts” meaning a legal claim where one party has by and through his actions caused injury
to another individual. They are also “third-party” torts, in that although they involve a
marriage between spouses, it is the actions of the “third-party” that causes the injury.

 

Alienation of Affections


Elements:
1. A marriage with genuine love and affection between Plaintiff and spouse.
2. That the love and affection of the spouse was alienated.
3. That the wrongful and malicious acts of Defendant were the proximate
cause of the alienation of the affections.
Example: Amy and Mike are married. Mike meets Tammy, and they begin an
intimate relationship (though not necessarily a sexual relationship). Tammy is
aware that Mike is married to Amy, but continues to pursue her intimate
relationship with Mike. Mike begins to grow distant from Amy and tells Amy that
he no longer loves her. Amy may be entitled to file a claim against Tammy for
alienating the affections of her husband Mike.
If Amy files an action against Tammy, then Amy would be the Plaintiff, and
Tammy would be the Defendant. (Although for purposes of this example it is the
Wife who brings an action against a paramour, the tort would also be available to a
Husband whose wife’s affections had been alienated, allowing him to bring the
action against his wife’s paramour.)
Amy must show at court that she and Mike were married at the time of Tammy’s
interference, and that she and Mike had genuine love and affection for each other in
order to satisfy the first element of this tort.
To satisfy the second element of the tort, Amy must show that the love and
affection that was present between herself and Mike is no longer present—that it
has been alienated.

Alienation of Affections and Criminal Conversation

For the third element, Amy must show that this loss of affection was brought about
through the acts of Tammy, and that these acts were done with malice. Malice has
been defined as acts constituting unjustifiable conduct causing the injury
complained of. Evidence of such malice includes the fact that Defendant knew of
the marriage between the parties, and acted intentionally in a way likely to affect
the marriage. Amy does not have to prove that Tammy’s malicious acts were the
only cause of the loss of love an affection between herself and Mike, but that
Tammy’s interference was the controlling cause of this loss.
If the above elements are proved at trial, and the Plaintiff suffered loss as a result of
the Defendant’s actions (loss of consortium, loss of income, loss of health, etc.)
then the trier of fact (judge or jury) is allowed to consider what damages to award.
With both claims, there are two separate types of damages for which you may
recover: compensatory damages, which are designed to “make you whole” and
compensate you for your losses resulting from the Defendant’s actions; and
punitive damages, which act as a punishment for the Defendant in the action,
penalizing them for their egregious acts. Punitive damages, if awarded, are limited
to either three times the amount of the compensatory damages awarded, or
$250,000.00, whichever amount is the greater of the two.


Compensatory Damages


The measure of damages is the present value in money of the support, consortium,
and other legally protected marital interests lost by her through the defendant’s
wrong. In addition the Plaintiff may also recover for the wrong and injury done to
her health, feelings, or reputation.
Consortium has been defined as the conjugal fellowship of husband and wife, and
the right of each to the company, cooperation, affection, and aid of the other in
every conjugal relation.
Any loss of income Plaintiff has suffered, any medical treatments (physical and
mental) that Plaintiff required as a result of Defendant’s actions, injury to
Plaintiff’s reputation and mental anguish may be considered for compensatory
damages. The Plaintiff will need documented proof of these damages to present to
the trier of fact, in the form of receipts, tax records, and other documentation that
proves the amount of damages. If the trier of fact has awarded compensatory
damages, and if it finds that there are additional aggravating factors, they may
consider awarding punitive damages.


Punitive Damages


Plaintiff must present evidence of circumstances of aggravation in addition to the
malice implied by law from the conduct of Defendant in alienating the affections
between the spouses which was necessary to sustain a recovery of compensatory
damages. Aggravating factors include conduct by the Defendant that is willful,
wanton, aggravated or malicious. Flaunting the relationship has been held as an
aggravating factor, as has calling the Plaintiff’s home to discover the whereabouts
of the Plaintiff’s husband.
If the Plaintiff is entitled as a matter of law to punitive damages, the trier of fact is
then allowed to consider the amount of these damages, subject to the following
factors:
a. The reprehensibility of the defendant’s motives and conduct.
b. The likelihood, at the relevant time, of serious harm.
c. The degree of the defendant’s awareness of the probable consequences of
its conduct.
d. The duration of the defendant’s conduct.
e. The actual damages suffered by the claimant.
f. Any concealment by the defendant of the facts or consequences of its
conduct.
g. The existence and frequency of any similar past conduct by the defendant.
h. Whether the defendant profited from the conduct.
i. The defendant’s ability to pay punitive damages, as evidenced by its
revenues or net worth.
Regarding punitive damages, it is important to determine the aggravating factors.
If Plaintiff’s aggravating factors are sufficient, the trier of fact will need to
determine the amount of punitive damages to award. This is where the factors
listed above (factors a – i), are used. Factor “e” is the amount of Plaintiff’s
compensatory damages, and will be determined by the trier of fact. However, any
evidence that would support the other elements will need to be provided by
Plaintiff.


Criminal Conversation


Elements:
1. A lawful marriage.
2. That Defendant had intercourse with Plaintiff’s spouse during that marriage.
Unlike alienation of affections, the tort of criminal conversation only requires that
spouses be married, and that at some point during their marriage, the Defendant had
sexual intercourse with Plaintiff’s spouse. No showing of love and affection is
necessary.
Example: Steve and Carol are married. Carol meets Paul and the two have sexual
intercourse. Steve has a claim against Paul for criminal conversation. If Steve files
an action against Paul, Steve would be the Plaintiff, and Paul would be the
Defendant. (Although for purposes of this example it is the Husband who brings an
action against a paramour, the tort would also be available to a Wife whose
husband had sexual relations with the paramour, allowing her to bring the action
against her husband’s paramour.)

4. Alienation of Affections and Criminal Conversation

Compensatory Damages


For criminal conversation, the measure of damages is incapable of precise
computation. The jury may consider the Plaintiff’s loss of consortium, mental
anguish, humiliation, injury to health, and loss of support. The areas of recovery
for criminal conversation are very much like the areas for alienation of
affections—but what must be kept in mind are the differing elements of each tort.
In other words, how much has Plaintiff suffered due to the intercourse between
Defendant and Plaintiff’s spouse?
Therefore, it would seem that the damage done by Defendant in alienating the
affections of Plaintiff’s spouse and destroying the relationship would cause a
greater injury to Plaintiff than an isolated instance of intercourse, or even perhaps
several instances of intercourse.


Punitive Damages


The same sexual misconduct necessary to establish the tort of criminal conversation
may also sustain an award of punitive damages. However, the evidence must show
the kind of reckless conduct justifying punitive damages.
Therefore, as with alienation of affections, some additional egregiousness must be
shown aside from the act of intercourse needed to satisfy the tort, such as making
the intercourse public knowledge, and other similar actions should be sufficient to
allow the trier of fact to consider punitive damages.


Dual Claims: Alienation of Affections & Criminal Conversation Combined


In a situation where the Plaintiff has claims for both alienation of affections and
criminal conversation against the same Defendant, the trial court will only allow
damages for one claim or the other—whichever claim has produced the greater of
the two damage awards. This is due to the fact that the elements between the two
torts are so similar, and that generally the same factual situation gives rise to both
torts. Therefore, although both claims may be heard in court, only one award of
damages—the greater of the two awards—will be taxed against Defendant.

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