In today’s Friday interview, Carolina Journal’s Donna Martinez moderates a debate on the state’s alienation of affection law. Jere Royall of the North Carolina Family Policy Council is the co-author of a paper defending the law, and Daren Bakst is the legal and regulatory affairs analyst for the John Locke Foundation, and opposes the law. The interview aired on Carolina Journal Radio (click here to find the station near you).
Martinez: Jere, let’s start with you. First, explain to us—why do you and your organization support the alienation of affection law?
Royall: Okay. When you look at the health of families in marriage, you see that that’s critical to the health of any society; we’ve seen that throughout history. And that’s why North Carolina has a number of laws that are focused on protecting and defending marriage. And just an example of those laws, we have education laws that require that our schools teach our young people that abstinence outside of marriage is the expected standard for their lives. We have criminal laws against—which you just mentioned—adultery and fornication, cohabitation, against rape and incest. And the particular law we’re looking at here is a law against alienation affection and criminal conversation. And that is a law—it’s a civil action—that allows an aggrieved spouse, when someone has committed wrongful and malicious acts that have resulted in the alienation of the love and affection in their marriage, to bring civil action for that wrong that has been brought into their lives.
Martinez: Daren Bakst, your reaction?
Bakst: Well, first of all, North Carolina is one of maybe at most seven states that allow this. Basically, every state is abolishing these types of laws because they are outdated, and the government really has no business to be involved in these types of relationships. It’s not the government’s role to protect us from having broken hearts. And, in fact, really these laws go back to the idea of property—that women were property. And eventually women were able to sue as well. It was designed really to protect men, and then women were able to sue. Then the rationale became, “Well, we’ll use these laws to defend families.” But, basically, the property rationale still exists. The cheating spouse, let’s say, for some reason is not to blame. The third party—the mistress or whatever you’d call it for a male…
Martinez: The other person.
Bakst: …is the only one to blame. That the cheating spouse has no blame—has nothing to blame, no blame, has no free will—is really, in essence, property that can be abused, manipulated in any other form. I mean, why not, should we have the same concerns when there is neglect in marriages, abuse in marriages? And the truth is—an affair, for example, which isn’t necessarily required, at least for the alienation to work… —may just be a symptom of a problem with the marriage already.
Martinez: Jere, what about this question that Daren brings up? Why would a person on the hook, essentially, for damages in a successful case of this nature, be the third party? Why wouldn’t the cheating spouse be held accountable in a court of law if we’re going to have this type of law at all?
Royall: Right, well, the purpose of this action is to address the fact that there is a third party who has committed—again, the elements of this action require wrongful and malicious acts—and we’re not denying that there’s a wrong-doing spouse who’s involved in this case, but that’s not the focus of this civil action. It is specifically created to address—it’s a tort action—and what tort claims represent is when someone has been harmed by the actions of another person. And when you’re talking about wrongful and malicious acts that lead to the alienation of the love and affection in a marriage, it is a tort action. It’s a wrong that’s been committed against a spouse.
Martinez: Jere, Daren mentioned something in his earlier comments that I’d like to ask you about. He said that, essentially, this is outdated, that it started with referring to women, essentially, as property. What do you make of that argument?
Royall: Well, that is a wrongful basis for a law, but that is not the basis for this law today. These cases are brought equally by men and women today. And, again, it’s not based on a property issue. It’s based on wrongful and malicious acts that have affected the love and affection in a marriage, knowing when you…
Martinez: Do you think, Jere, that we run the risk in this type of law of allowing someone who, for example, might want to get revenge on a cheating spouse, to have a legal remedy to get revenge? Because that’s what some critics say about this type of law.
Royall: Right, well…if they do bring them, the law provides for a remedy for that. So, it’s like any law. People can abuse the law, but that’s part of the ethical calling for an attorney to bring these actions when they meet the requirements for this specific action.
Martinez: Daren, one of the things that Jere writes about in his paper for the North Carolina Family Policy Council is that his organization believes that this law is important, for example, because it protects children who many times are involved in these broken homes.
Bakst: Well, the problem, again, with the law is that there’s no way to even, first of all, prove that the third person caused any harm at all to the aggrieved spouse or the family or the child. And, as you mentioned, actually, most of these cases are brought after a divorce,—usually done basically for revenge purposes. And there’s no way to know if there is any type of intent to harm somebody in a relationship. Relationships develop—a person may not even necessarily know—I don’t think that they necessarily know that they’re married, but if they do, still, it doesn’t necessarily matter per se, at least in terms of the law.
Royall: Well, actually our laws do. I mean, as we mentioned, we also have criminal statutes against adultery and against cohabitation, so people shouldn’t need to know anything but that. I mean, our laws are very clear. And, sadly, we are living in a society where these criminal actions are rarely prosecuted. And that’s why, again, some people look at this as a means to properly, in a legal manner, to respond to, again, wrongful and malicious acts.
Bakst: But that’s—if I could—it’s good that there’s no criminal prosecution. We don’t enforce it because it shouldn’t be a crime, and, of course, it would be pretty much unenforceable. And if it was enforced, it would be arbitrary. And that’s not an excuse or a reason then to have some type of tort just because it’s not criminal.
Royall: Well, I think, again, when you come back and look at our constitution of our state, in its preamble, it starts our clearly saying that our society—the rights that we have, the created order that we have—and it uses the word—it comes from almighty God. And certainly marriage, it was the very first—when we see the earliest recorded history—it was the first man and first woman coming together in marriage. So, when we’re looking at the order and our purpose of our government, this is clearly an example of an area where our government needs to be involved. This is part of the created order. It talks about if we want to continue with our happiness and the blessings, we need to follow that order.
Martinez: A couple of years ago, as I understand it, the state legislature did try to change this law, to repeal it. Is there any effort underway, Jere, to do that now?
Royall: Not aware of one currently, but there have been. In two or three sessions, there have been bills introduced to abolish these laws. And that’s why we have tried to offer this information to help educate people on the reason for keeping these laws in place and the need for those.