March 11, 2009

"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."

Maggie Gallagher is inspired by this proposed statute (from Minnesota, oddly enough). But what she really wants is not that you should be able to extract half a million dollars from the person who seduced your husband/wife. She wants a cause of action against websites that facilitate adultery.

40 comments:

Kirby Olson said...

I think this is a good idea.

Hoosier Daddy said...

I suppose stoning and 99 lashes won't be far behind.

If someone's going to be influenced by a website to get take out instead of sticking with the home cooked meal then that marriage is pretty much on the ropes anway.

Balfegor said...

I'm surprised, frankly -- I didn't realise anyone took the idea of marriage seriously as a legal matter anymore.

Other than for, you know, lowering peoples' taxes and easing immigration and that kind of thing.

Re: Hoosier

If someone's going to be influenced by a website to get take out instead of sticking with the home cooked meal then that marriage is pretty much on the ropes anway.

I'm not sure it's "influenced" so much as facilitating, no? I've giggled over tawdry Japanese 人妻 (hitozuma -- someone else's wife) personals before, and I can well imagine that such things exist in the US as well.

As far as a marriage being "on the ropes," it depends on whether you think sexual attraction or fidelity are core to the marriage. If it's fidelity, then the fact that one might experience outside sexual temptations might not be a problem -- Jimmy Carter "lusted in his heart" after all, no? And whatever his failings as a President and a leader, he is by all accounts (that I've read) a loyal and dutiful husband, and a good family man. But facilitating acting on those kinds of temptations -- and encouraging them and so on -- is a rather different matter.

It's a much more mild version of what has happened with child porn and the internet, where people previously stewed in their secret shame, but now have this huge online echo chamber of fellow perverts and undercover FBI agents to buoy them up and convince each other that pederasty is just another kind of sexuality, nothing wrong with it at all. It's easier to refrain from error and wrongdoing if there's no one around telling you to "just do it", "live in the moment", "be true to yourself" or "act on your feelings," or some such drivel.

downtownlad said...

I've slept with plenty of married men. Men who are married to women. Men with kids.

There's absolutely nothing wrong with that. Their marriage is a fraud anyway.

bagoh20 said...

DTL,
Isn't homosexuality, by it's very nature, naturally speaking, fraudulent?

Simon said...

I rather agree with Maggie and Kirby, as an abstract concept, although I suspect the idea is unworkable. Would a plaintiff not be required to prove but-for causation in a way that is entirely infeasible? Or would liability attach to the website operator simply for aiding the designs of the spouse, whether the website played a part inflaming or simply facilitated that intent? If the latter, why wouldn't Althouse be liable qua operator of this website if two commenters, one married, were to connect?

Can someone who's familiar with caselaw on tortious interference with contracts weigh in?

Garth Sullivan said...

talk about government interference in the "affairs of man"

Freeman Hunt said...

My first instinct is to say, "Way too intrusive!" But then again, if marriages are contracts, and if we want them taken seriously in society...

Maybe marriage contracts should be given some teeth.

peter hoh said...

Freeman, IANAL, but I don't think the law treats marriage as it treats other contracts.

Perhaps one of the lawyers in the commentariate can articulate some of the differences between the marriage contract and other legally binding contracts.

Synova said...

DTL, the only people I have known, personally, who got and died of AIDS were wives of men, who decided that their "sham" of a marriage made it acceptable for them to kill their wives.

I'm not impressed at all with your excuse.

Married people *don't* use protection because they are *supposed* to be in an exclusive relationship. Trust being the basis of it. Trust requiring actual, you know, *trust*.

Maybe you should respect *yourself* more by not having sex with liars and cheats.

Synova said...

I actually have a relative (of some distance or other, I won't say) who's wife was involved in one of those web-site hook-up things. When he found out and confronted her she was 1) shocked that he was upset at her, and 2) offended when he demanded she get tested for HIV.

She might still be doing it for all I know, but now she's single.

Synova said...

Now, more seriously... divorce is something like the single most sure predictor of poverty. Not even getting into the issue of children, there are people with a legitimate interest other than those involved in the adultery.

The story always used to be about the philandering man who took his wedding ring off when he went out or went out of town on business. Presumably floozies *used* to have standards and would be put off by a wedding ring.

Now is it even possible to suggest to someone that willingness to get involved with someone who is married means you're a bad person?

mcg said...
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mcg said...

Synova: actually, it is my understanding single parenthood, not divorce, that is the single biggest predictor of poverty. At one time in history the two factors would be strongly correlated with one another, but with the rise in unwed motherhood this is no longer the case.

veni vidi vici said...

Gallagher and her cohort Stanley Kurtz both do about the best job I've seen done of articulating the defense of hetero-marriage argument, and they present an articulate, mostly non-hyperbolic case that must be taken seriously and addressed if the dilution-of-marriage movement is to succeed in any degree more satisfactory than the 40-year-old unending abortion war in the culture.

That said, I no longer agree with their position and am not particularly bothered by the idea of same sex marriage. Since all it boils down to is having the relationship recognized by law for purposes which are basic and decent, like hospital visitations, survivor's rights to benefits, etc., I'm not the guy who's going to say that it's fair to deprive my neighbors of that recognition. That would be unneighborly, and to this fella, unneighborliness is downright unAmerican.

veni vidi vici said...

"Maybe marriage contracts should be given some teeth."

In the instant case, the teeth at issue would likely be of the Dick Morris "buttock-biting" variety.

veni vidi vici said...
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veni vidi vici said...
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Synova said...

mcg - yes, you're likely right that it's single parenthood that is most associated with poverty. It doesn't seem to make all that much difference, though, if the "single" parent is the custodial one or not. And it's certainly a case where your own good behavior is irrelevant if your spouse decides to leave you or screw around on you.

TosaGuy said...

People who knowingly screw around with a married folks should have their head examined. It may be 100 percent the fault of the cheater, but the other man/woman simply has no sense of morality and is not worthy of finding someone who loves them.

But that is not the issue of this lawsuit. While folks will still cheat without this internet site, there is no good reason whatsover for this website to exist. If a lawsuit makes it harder for such sites to exist then our world will be a better place.

If you are going to cheat....do it the old fashioned way and meet them in a bar, the office or a convention in Des Moines. That takes some work, trolling hookup sites doesn't.

jdeeripper said...

Maggie Gallagher is inspired by this proposed statute (from Minnesota, oddly enough).

Minnesota Fats was not from Minnesota but he was apparently the biological father of singer Etta James who remember got angry about Beyonce singing "At Last" for Obama.

Obama's father was an adulterer with a 17 year old girl. Etta James' mother was only 14.

Etta James definately looks like she could be Minnesota Fats' daughter.

And now a woman has come forward claiming to be Jerry Lewis' daughter and she also looks like she could be his daughter. Jerry was married with 5 sons at the time of her birth.

Revenant said...

I don't see any moral, ethical, or legal justification for this.

Ted and Susan are married. Bob is single. Bob and Susan have sex.

How does Ted have grounds to sue Bob? Bob didn't break the law. Bob didn't violate any agreement to which he was a party. Bob didn't promise not to have sex with Ted's wife. Bob didn't urge the two to get married. The only person who violated any kind of contract here was Susan. Ted can sue HER, for all the good it'll do him.

You could make an argument that we should implement something like this "for the good of society". But undermining the concept of personal responsibility doesn't strike me as good for society in the long run. People should be responsible for what THEY agree to, not what other people agree to.

Jeremy said...

At the very least, the cuckold ought to get a pass if he takes a swing at the other guy.

Windbag said...

Don't most states still have alienation of affection statutes on the books? That being a criminal case, not civil, it's hard to get it enforced, because most DAs aren't going after crimes that don't "hurt anyone."

Windbag said...

At the very least, the cuckold ought to get a pass if he takes a swing at the other guy.

I cheered when Robert Duvall whacked the guy with the baseball bat in The Apostle. Good for him.

traditionalguy said...

The law of Alienation of Affections made the facilitator of a divorce at real jeopardy if he had property. Also, the use of Courts as a substitute for personal violence was seen as very necessary in order to prevent a murder followed by a possible death Sentence. Ask Helen of Troy about the violence. But since Freud's theories made men into hopeless libidos, everyone is supposed to just do it and get over it. I suspectthe truth is that the wounds caused by the Stealing of a man's wife never will heal without some measure of retribution either here or in the Final Judgement.

Revenant said...

That being a criminal case, not civil, it's hard to get it enforced, because most DAs aren't going after crimes that don't "hurt anyone."

I suspect the law would be found unconstitutional, too. If you can't outlaw sodomy between two consenting adults I don't see how you could outlaw adultery between two consenting adults.

Simon said...

Revenant said...
"Ted and Susan [have a marriage contract]. Bob is single. Bob and Susan have sex. How does Ted have grounds to sue Bob? ... Bob didn't violate any agreement to which he was a party."

Why doesn't that theory completely eliminate tortious interference with a contract? Pennzoil and Getty Oil have a contract. Texaco isn't a party to that contract. Getty gives it up to Texaco. How does Pennzoil have any grounds to sue Texaco? Texaco didn't violate any agreement to which it was a party.

Synova said...

Ted and Susan are married. Bob is single. Bob and Susan have sex.

How does Ted have grounds to sue Bob?


Receiving stolen property?

Simon said...

Synova, Susan is property? That's a touch regressive isn't it? ;)

peter hoh said...

Revanent wrote: I suspect the law would be found unconstitutional, too. If you can't outlaw sodomy between two consenting adults I don't see how you could outlaw adultery between two consenting adults.

About the time that Lawrence was decided, the Supreme Court of Missouri tossed out an alienation of affections suit and pretty much declared the basis for such suits unconstitutional. The case received little attention from culture warriors like Gallagher.

Revenant said...

Pennzoil and Getty Oil have a contract. Texaco isn't a party to that contract. Getty gives it up to Texaco. How does Pennzoil have any grounds to sue Texaco? Texaco didn't violate any agreement to which it was a party.

I don't see the parallel you're drawing here. My understanding is that Pennzoil showed that Getty had already agreed to transfer ownership to them, and thus Texaco was in possession of property that was rightfully Pennzoil's.

A husband does not own his wife. Not under modern American law, anyway.

Pogo said...

Since when did Minnesota of all states get hyped up about preserving the bonds of marriage?

MN is a standard lefty state with all that implies. Plus, we have a hefty Islamic population and subsidize Islamic schools that promote terrorism such as suicide bombing.

So maybe it's MN's first foray into sharia law or some such.

Simon said...
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Simon said...

Rev, I think the only assumption necessary to the comparison is that marriage can be analogized to a contract or agreement. So long as it can be, it seems to me that there isn't much difference between the two for purposes of your theory. In general terms, what we're talking about here is a situation where A and B have a contract or agreement to which C is not a party, whereafter B and C engage in activitity forbidden to B by their contract ot agrement with A, giving rise to the question of whether A has any claim against C. I had thought that the answer, at least in principle and assuming scienter and so forth, was yes.

Freeman Hunt said...

What if the property in question is not one's spouse but the exclusive right to have sex with the spouse?

tim maguire said...

Simon, you're right. This law does make sense under the well established concept of tortious interference. My own opinion, though, is that tortious interference is a groundless, meritless legal concept. It's sole purpose is to bind non-signatories to a contract whose terms they did not negotiate and never agreed to. When a spouse cheats, only the spouse is breaking a vow.

But again, that's just my opinion of what the law should be, not what the law is.

Simon said...

Tim, well, since we're talking about taking an established concept and extending it into a new application, your point's perfectly valid. Suppose we think that tortious interference with a contract is a crummy theory of liability: maybe that isn't a good enough reason to constrict its existing reach, but it would certainly be an argument against extending its reach to novel applications.

Synova said...

Synova, Susan is property? That's a touch regressive isn't it? ;)

Hehe... okay, receiving stolen services then. ;-)

But I still think that it works as an example of a case where a third party who didn't actually *do* anything, is held accountable by our laws.

This proposed (?) law seems to fairly clearly state that the person outside of the marriage contract needs to have had knowledge of the marriage contract to be liable for damages. I don't think that's the case for someone who buys stolen property, is it?

Ornithophobe said...

I only wish I could have sued for a facilitating website for alienation of affection when I divorced my husband. He met his trollop on Everquest; Sony had deep pockets at the time.

In truth, though, I think this would make for bad law. Though I could easily get behind reinstating AOA laws for actual PEOPLE.