Criminal conversation

At common law, criminal conversation, commonly known as crim. con., is a tort arising from adultery, abolished in many jurisdictions.

It is similar to breach of promise, a tort involving a broken engagement against the betrothed, and alienation of affection, a tort action brought by a deserted spouse against a third party.

History of criminal conversation

1782 cartoon by James Gillray, depicting Sir Richard Worsley helping George Bisset view his wife, Seymour Fleming, naked in a bath-house. The caption reads: "Sir Richard Worse-than-Sly / Exposing his Wifes Bottom; – O fye!"

Initially, criminal conversation was an action brought by a husband for compensation for the breach of fidelity with his wife.[1]

The tort was abolished in England and Wales in 1857, but persisted in Ireland long after (Northern Ireland retained it until 1939, and the Republic of Ireland until 1976). It still exists in parts of the United States, but the application has changed. At least 29 states have abolished the tort by statute and another 4 have abolished it judicially.[2]

Suits for criminal conversation reached their height in late 18th and early 19th-century England, where large sums, often between £10,000 and £20,000 (worth upwards of £10-20 million in today's terms), could be demanded by the plaintiff, for debauching his wife. These suits were conducted at the Court of the King's Bench in Westminster Hall, and were highly publicised by publishers such as Edmund Curll and in the newspapers of the day.[3] Although neither the plaintiff, defendant, nor the wife accused of the adultery was permitted to take the stand, evidence of the adulterous behaviour was presented by servants or observers.

A number of very sensational cases were heard in the second half of the 18th century, including Grosvenor v. Cumberland in 1769, where Lord Grosvenor sued the King's brother, the Duke of Cumberland for crim con with his wife, being awarded damages of £10,000;[4] and Worsley v. Bisset in 1782, where Sir Richard Worsley lost his case against George Bisset, after it had been found that he had colluded in his own dishonour by showing his friend his wife, Seymour Dorothy Fleming, naked in a bath-house (technically he won the case, as the fact of adultery was not contested, but the jury awarded only one shilling damages).[5] In 1796, the Earl of Westmeath was awarded £10,000 against his wife's lover, Augustus Bradshaw.[6]

Current usage

The tort of criminal conversation seeks damages for the act of sexual intercourse outside marriage, between the spouse and a third party.[7] Each act of adultery can give rise to a separate claim for criminal conversation.

The tort is still recognized in a number of states in the United States, although it has been abolished either legislatively or judicially in most.[8]

The tort has seen particular use in North Carolina.[9] In the case of Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), the North Carolina Court of Appeals (the state's intermediate appellate court), abolished the tort of criminal conversation, as well as the tort of alienation of affections, in the state. However, the North Carolina Supreme Court summarily vacated the Court of Appeals' decision shortly thereafter, saying in a brief opinion that the Court of Appeal had improperly sought to overrule earlier decisions of the Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). In 2009, the General Assembly approved legislation which placed some limits on such lawsuits.[10] The bill was signed into law by Governor Bev Perdue on August 3, 2009, and is codified under Chapter 52 of the North Carolina General Statutes:[11]

“ § 52-13. Procedures in causes of action for alienation of affection and criminal conversation.

(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.

(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.

(c) A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.[12]

 ”

Each of the three limitations arose from a recent North Carolina legal case involving the tort. In Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009),[13] the North Carolina Court of Appeals had held that the tort applies even to legally separated spouses. In Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006), the North Carolina Supreme Court held that the statute of limitation commences when the affair should have been discovered rather than when it occurred. In Smith v. Lee, 2007 U.S. Dist. LEXIS 78987, the Federal District Court for the Western District of North Carolina noted that the question of whether an employer could be held liable for an affair conducted by an employee on a business trip was still unsettled in North Carolina.

References

  1. ↑ Black's Law Dictionary, 4th ed. 1957.
  2. ↑ Gallo, Nancy R. (2004). Introduction to Family Law. Clifton Park, N.Y.: Thomson/Delmar Learning. pp. 131–132. ISBN 1-4018-1453-0.
  3. ↑ Bill Overton (2002). Fictions of female adultery, 1684-1890: theories and circumtexts. Palgrave Macmillan. p. 127. ISBN 0-333-77080-3.
  4. ↑ Stella Tillyard (2010). A Royal Affair: George III and His Troublesome Siblings. Random House. pp. 169–175. ISBN 1-4090-1769-9.
  5. ↑ Rubenhold, Hallie (2008). Lady Worsley's Whim. London: Chatto & Windus.
  6. ↑ Earl of Westmeath v Bradshaw 1796 reported in Collected Speeches of John Philpot Curran New York 1811 p.163
  7. ↑ Bruton, H. Hunter (January 2016). "The Questionable Constitutionality of Curtailing Cuckolding: Alienation of Affection and Criminal Conversation Torts".
  8. ↑ Bruton, H. Hunter (January 2016). "The Questionable Constitutionality of Curtailing Cuckolding: Alienation of Affection and Criminal Conversation Torts".
  9. ↑ Bruton, H. Hunter (January 2016). "The Questionable Constitutionality of Curtailing Cuckolding: Alienation of Affection and Criminal Conversation Torts".
  10. ↑ (broken link) at The Sun News of Myrtle Beach, South Carolina.
  11. ↑ “House Bill 1110 / Session Law 2009-400” Retrieved 23-3-2010
  12. ↑ N.C. Gen. Stat. § 52-13 (2010), (available at http://www.ncga.state.nc.us/Sessions/2009/Bills/House/PDF/H1110v7.pdf Retrieved 23-3-2010)
  13. ↑ Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009)

Further reading

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