Chapter 14 CRIMINAL CONVERSATION (ADULTERY)

• Jurisdiction: North Carolina

14 CRIMINAL CONVERSATION (ADULTERY)

A. Definition

Criminal conversation is adultery.¹ It is a tort action² based on violation of "the fundamental right to exclusive sexual intercourse between spouses."³

It is sometimes referred to as a "heart balm" action because it purports to award money damages for emotional harm.⁴ While it is somewhat related to and frequently brought in one suit together with the action for alienation of affections, the two are separate and distinct torts.⁵ The action has been severely criticized as having the potential to cause more harm to families and innocent individuals than it seeks to prevent.⁶ Its historical purpose, providing a remedy to protect an "exclusive right to sexual relations with the wife, based both on a need to maintain pure bloodlines for inheritance purposes and on principles of morality,"⁷ also renders it subject to reproof for being "rooted in obsolete theories."⁸ Indeed, the North Carolina Court of Appeals abolished the action,⁹ but its demise was short-lived. It was quickly resurrected by the North Carolina Supreme Court¹⁰ and the Court of Appeals has, more than once, refused invitations to abrogate it a second time.¹¹ That court has, however, warned that in the future, "courts will need to grapple with the reality that these common law torts burden constitutional rights and likely have unconstitutional applications."¹²

The defendant in an action for criminal conversation must be a natural person.¹³

B. Elements

The elements of the action for criminal conversation are:

(1) Marriage between the spouses, and
(2) Sexual intercourse between the defendant and the plaintiff's spouse during the coverture.¹⁴

Neither malice¹⁵ nor alienation of affections¹⁶ is a necessary element.

C. Elements Defined

1. Marriage Between the Spouses

The marriage element is seldom at issue. When reciting the required elements of an action for criminal conversation, courts sometimes modify "marriage" with the word "actual,"¹⁷ and commentaries refer to "valid marriage."¹⁸ The plaintiff does not need to prove that the marriage was a close,¹⁹ happy or successful²⁰ one.

2. Sexual Intercourse Between Defendant and Plaintiff's Spouse During the Marriage

A plaintiff may recover for criminal conversation even when the evidence shows only a single encounter of sexual intercourse between the defendant and the plaintiff's spouse.²¹ On rare occasion, the defendant admits intercourse.²² Where, however, the plaintiff must offer evidence, it is not necessary to show sexual intercourse by direct proof.²³ Indeed, adultery is nearly always proved by circumstantial evidence.²⁴ Circumstances are sufficient proof of adultery "if therefrom the jury can reasonably infer the guilt of the parties."²⁵ In Estate of Trogdon,²⁶ the court considered an allegation of adultery not in an action for criminal conversation, but in a dispute over a wife's application for a spouse's year's allowance, pursuant to a North Carolina statute,²⁷ from the estate of her husband, who died intestate. The court said:

Where adultery is sought to be proved by circumstantial evidence, resort to the opportunity and inclination doctrine is usually made. Under this doctrine, adultery is presumed if the following can be shown: (1) the adulterous disposition, or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations.²⁸

In reviewing other cases where proof of adultery was at issue,²⁹ the court acknowledged that the general principles they set forth concerning proof of adultery are conflicting and unsatisfactory, but opined that such contradictions were inevitable given the fact-specific nature of these types of cases. Applying the "opportunity and inclination doctrine" to the facts before it, the Trogdon court said that evidence the wife cohabited with a male for approximately three years and invoked her Fifth Amendment privilege against self-incrimination³⁰ when questioned about the relationship supported the finding of the lower court that she voluntarily separated from her husband and lived in an uncondoned adulterous relationship.

Cases concerning criminal conversation rarely discuss either Trogdon or the opportunity and inclination doctrine.³¹ They do, of course, resolve the question of sexual intercourse from circumstantial evidence, but their decisions may not be of great precedential value because they are, as noted by Trogdon, extremely fact-specific. Courts require evidence to rise above that which would only lead to "mere conjecture" about the occurrence of sexual intercourse, and when it does not, readily find insufficient support for an action for criminal conversation.³² On the other hand, a detailed recitation of events by the plaintiff frequently leads appellate courts to determine there is adequate support for the action.³³

It may be necessary to prove the illicit behavior occurred in North Carolina;³⁴ however, it does not appear that the parties or the complicit spouse must be residents of North Carolina.³⁵ In proving adultery, the issue whether the plaintiff is competent to testify has arisen. In an early case,³⁶ a plaintiff husband brought an action for alienation of affections and criminal conversation, and the North Carolina Supreme Court decided he was competent to testify about the adultery of his wife with the defendant.³⁷ Indeed, in Gray v. Hoover,³⁸ the plaintiff was the only witness to testify at trial. The jury found for the plaintiff on his criminal conversation claim, but the trial court granted the defendant's motion for judgment notwithstanding the verdict and ordered the jury verdict and judgment for the plaintiff set aside and judgment entered for defendant. The appellate court, however, found the evidence was sufficient, as a matter of law, to support the verdict in favor of the plaintiff, and reinstated the verdict of the jury.

One issue of debate has been whether post-separation conduct is sufficient to establish a claim for criminal conversation. In dicta, Pharr v. Beck³⁹ said that a criminal conversation claim must be based on pre-separation conduct. The court in Johnson v. Pearce⁴⁰ confirmed that the Pharr statement, since the case dealt solely with alienation of affections, was dicta and said the court was not bound by it. In fact, Johnson said it was bound by decisions of the North Carolina Supreme Court⁴¹ and prior panels of the Court of Appeals recognizing that the mere fact of separation does not bar a claim for criminal conversation that occurs during the separation. Thus, the court found the trial judge did not err in concluding that a criminal conversation claim could be based solely on post-separation conduct.⁴² Subsequently, in Nunn v. Allen,⁴³ the defendant argued the existence of a separation agreement between the plaintiff and his wife provided at least two defenses. However, in Nunn, the court cited Johnson as holding that claims for criminal conversation may be based solely on post-separation sexual relations. The defendant's attempt to distinguish Johnson because no separation agreement existed there was rejected by the court. It declined to establish an exception and held the existence of the separation agreement did not shield the defendant from liability for criminal conversation based on his post-separation sexual relationship with the plaintiff's wife.⁴⁴ Subsequently, the North Carolina Supreme Court overruled Pharr to the extent it required an alienation of affections claim to be based on pre-separation conduct alone.⁴⁵

In 2009, the legislature resolved the issue by adopting a new statute providing that no act of a defendant may give rise to a cause of action for criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either of them that the physical separation remain permanent.⁴⁶ The Court of Appeals has now held that evidence of post-separation conduct is competent to support findings of pre-separation conduct.⁴⁷

D. Defenses

Criminal conversation has been described as nearly a strict-liability tort.⁴⁸ It has very few defenses.⁴⁹ The consent of the plaintiff's spouse to the act of adultery with the defendant is, for example, no defense.⁵⁰ Even seduction of the defendant or misrepresentation of the marital status by the plaintiff's spouse is said to be no defense.⁵¹ The plaintiff's own adultery is also not a defense.⁵² That the marriage was not close,⁵³ or even was unhappy or unsuccessful,⁵⁴ is of no avail to the defendant, and neither is a valid separation agreement.⁵⁵ The defendant's death may or may not nullify the action.⁵⁶

The "consent or connivance" of the plaintiff is a defense.⁵⁷ However, to invoke it, the defendant must show not merely subsequent forgiveness or acceptance of the spouse by the plaintiff, but that before the intercourse, he or she approved of or encouraged the intercourse.⁵⁸ Thus, virtually the only practical defense is the statute of limitations,⁵⁹ which, for criminal conversation, is three years.⁶⁰ In 2009, a new statute was enacted providing that an action for criminal conversation may not be commenced more than three years from the last act of the defendant giving rise to the action.⁶¹ Note that the North Carolina Supreme Court has said that cases of criminal conversation are subject to the statute of repose,⁶² under which no cause of action accrues more than 10 years from the last act or omission of the defendant giving rise to it.⁶³

E. Remedies

Jury awards in actions for criminal conversation, which may be for both compensatory and punitive damages, have grown considerably in recent years.⁶⁴ In making its award, the jury may consider loss of consortium, mental anguish, humiliation, injury to health⁶⁵ and loss of support.⁶⁶

The impairment of the plaintiff's relationship because of his or her own infidelity is a factor to reduce damages.⁶⁷

Loss of income has been considered where the plaintiff's employment was terminated.⁶⁸ While...