Norton v. MacFarlane

DURHAM, Justice

(concurring and dissenting):

In my dissent in Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), I said that there was “no logical reason to permit an action for loss of consortium for an intentional tort [namely, alienation of affections], yet prohibit the action for a negligent tort.” Id. at 1293. In this case, I go further and assert that, having declined to recognize a common law cause of action for loss of consortium in Hackford, this court has rejected the historical common law foundation for the torts of alienation of affections and criminal conversation. ‘'While agreeing that the action [for alienation of affections] was based primarily on loss of consortium, courts have defined the consequences variously as an injury to property, to the person, to personal rights, or to feelings.” Feinsinger, Legislative Attack on “Heart Balm, ” 33 Mich.L.Rev. 979, 993 (1935) (emphasis added). Likewise, the tort of criminal conversation has its roots in common law rights to the body and services of a spouse (historically, the wife):

The focus of the tort of criminal conversation lies in the husband’s proprietary interest in the body and services of his wife, whose status at common law was that of the husband’s chattel and servant.... The courts expanded the concept of trespass and established the tort of criminal conversation to protect the husband’s right of exclusive marital intercourse.

Note, 15 Duq.L.Rev. 709, 711 (1977) (citations omitted). “Damages recoverable in a criminal conversation action are essentially the same as those for alienation of affections. This is as it should be, since both actions provide a remedy for the interference with consortium.” Comment, Stealing Love in Tennessee: The Thief Goes Free, 56 Tenn.L.Rev. 629, 653 (1989) (citations omitted).

It strikes me as a peculiar irony that this court is willing to uphold a common law cause of action for alienation of affections, a tort which “diminishes human dignity” ¹ but is unwilling to recognize equivalent or even more devastating losses to innocent spouses through loss of consortium resulting from a third party’s negligent conduct. I suggest that the concern of the majority opinion in this case for the sanctity of the marital relationship and all it implies rings hollow in the context of this court’s failure to permit recovery for damages done to that relationship through negligence.

Moreover, other legitimate alternatives to an alienation of affections cause of action exist to protect the interests in question. Breach of fiduciary duty, intentional infliction of emotional distress, sexual harassment, professional malpractice, and invasion of personal or familial privacy are a few examples. See, e.g., O’Neil v. Schuckardt, 733 P.2d 693 (Idaho 1986) (abolishing the tort of alienation of affections, but upholding a cause of action for invasion of domestic privacy by “cult” religious leaders); Coleman, Sex in Power Dependency Relationships: Taking Advantage of the “Fair” Sex, 53 Alb.L.Rev. 95 (1988); Destefano v. Grabrían, 763 P.2d 275 (Colo.1988) (“heart balm” statute did not prevent couple’s claim of outrageous eonduct/breach of fiduciary duty against clergyman who had sexual relations with wife while counseling for marital problems); Note, Loss of Consortium and Intentional Infliction of Emotional Distress: Alternative Theories to Alienation of Affections, 67 Iowa L.Rev. 859 (1982); Note, Sexual Molestation Within America’s Parishes and Congregations; Should the Church be “Thy Priest’s Keeper”?, 91 W.Va.L.Rev. 1097 (1989); Clark, Marital Privacy: New Remedies for Old Wrongs, 16 Cumb.L.Rev. 229 (1986); Note, Sexual Exploitation and Psychotherapy, 11 Women’s Rights L.Rep. 121 (Summer 1989).

In conclusion, I agree with the comment of the Idaho Supreme Court, which recently abolished the cause of action for alienation of affections because “the many ill effects of the suit ... outweigh any benefit it may have,” O’Neil v. Schuckardt, 733 P.2d at 698, and extend the sentiment to the tort of criminal conversation. Furthermore, in Utah, where the loss of consortium is not protected against negligent damage, I submit that there can be no legitimate recovery for consortium damages resulting from intentional acts. The interest in the marital relationship should exist for all purposes or for none. Therefore, I concur in the abolition of the tort of criminal conversation and dissent from the retention of the tort of alienation of affections.

1 . The Washington Court of Appeals in Wyman v. Wallace, 15 Wash.App. 395, 549 P.2d 71 (1976), aff'd, 94 Wash.2d 99, 615 P.2d 452 (1980), said: "To us the action diminishes human dignity. It inflicts pain and humiliation upon the innocent, monetary damages are either inadequate or punitive, and the action does not prevent human misconduct itself.” Id. 549 P.2d at 74. The court also observed, "The action brings out in the plaintiff spouse deceit, jealousy and greed.” Id. at 73.