Across discussions of the Kyrsten Sinema alienation of affections case, many commentators articulated a roughly similar stance: spouses pledge fidelity to one another, and when those pledges are broken, the fault lies with the spouses toward the other partner. By contrast, the lover of one spouse has not entered into any promises with the other spouse. Therefore, the lover cannot be said to be at fault.
I don’t believe that interpretation is correct, nor do I think it aligns with the standard way our legal system treats comparable situations. On balance, the abolition of the alienation of affections tort (adopted by 45 states) is a sound development. But not for the reason that “the lover isn’t at fault, only the spouses are.”
Instead, alienation of affections is best understood as analogous to complicity liability. If Alan commits an intentional wrong against Betty, whether a crime or a tort, and Cathy urges Alan to carry it out, Cathy is generally liable. The label sometimes used for this is “solicitation,” though at times it is treated as a form of aiding and abetting.
If Cathy assists Alan in committing the wrong, or participates in the act, Cathy is likewise liable for aiding and abetting or conspiracy. (Both concepts extend to civil liability as well as criminal liability.)
Perhaps the closest analogue to alienation of affections is the scenario in which Alan breaches his contract with Betty, and Cathy encouraged him to breach it; in many cases she will be liable for intentional interference with contract. The same applies if Alan breached a fiduciary duty to Betty, with Cathy’s encouragement of that breach.
Now there can be complications here. Among other things, complicity liability will often apply only if Cathy has the purpose of bringing about Alan’s misbehavior, or at least knows that Alan is misbehaving. Negligently providing assistance is enough in some contexts (see, for example, negligent entrustment of cars or weapons), but usually not enough. Yet in many alienation of affections cases, the defendant knew that the defendant’s lover was married.
And I think that, on balance, this kind of complicity liability makes sense in most circumstances. Deliberately helping someone else commit a wrong against a third party, and especially urging that person to commit the wrong, constitutes a wrong against the third party in its own right. But whether you share that view or not, that is the prevailing approach in our legal system.
The example of intentional interference with contract also addresses the argument that “spouses don’t own each other, so a third party can’t ‘steal’ a spouse from the other spouse.” Contracting parties likewise do not own one another: if Alan promises to sing in Betty’s opera house for a year, that does not mean that Alan is Betty’s property. But if Cathy lures Alan away to sing in her opera house, especially with knowledge of Alan’s binding contract with Betty, then she is liable—not for stealing Alan as if he were property, but for inducing his breach of the contract he voluntarily entered into. In the same way, an alienation of affections claim does not depend on ownership any more than does the claim for intentional interference.
As I noted, there are good reasons why the alienation of affections tort has been abolished in the vast majority of states. I may explore those reasons further in a future post. But the rationale is mostly functional and pragmatic rather than conceptual. The inability to sue those who assist in adultery marks a departure from the traditional conceptual framework governing civil and criminal liability.
