Your spouse has an affair and leaves you to be with their lover. It’s painful, you believe you deserved better and you think someone besides you should suffer, too — like your spouse’s lover. That’s what a North Carolina man thought, and — surprise! — a judge agreed with him, granting him a $750,000 judgment against the man who had an affair with his wife and basically “stole” her away.
How can that be? Well, North Carolina is among a handful of states — Hawaii, Mississippi, New Mexico, South Dakota and Utah — that still have laws addressing alienation of affection, a common law tort that allows a spouse to seek legal action against someone believed to be responsible for damaging the marriage, often resulting in divorce, in force.
The cuckolded husband, Kevin Howard, will most likely never see a penny of the money, but he’s nonplussed. He says he got what he wanted — sending a message that it’s not OK to cheat.
I filed the case because I feel that it’s very important that people understand that the sanctity of marriage is important especially in this day and age when people question everyone’s morals, people question everyone’s liability of a person, and the state backed me up on it.”
Inflicting morality
Is it up to the state to monitor the “sanctity of marriage”? Isn’t that just a way of society inflicting morality on what are truly personal matters?
That’s what Deborah L. Rhode, a professor at Stanford Law School, and a leading scholar in legal ethics and gender, law and public policy, believes. In her book Adultery: Infidelity and the Law, Rhode argues that, as much as she doesn’t support infidelity, it shouldn’t be a crime, which has real-life consequences.
As Rhode writes,
There are, to be sure, strong reasons to disapprove of adultery. It can have devastating consequences for spouses and children. But the steady recurrence of infidelity suggests the ineffectiveness of trying to use legal sanctions and workplace penalties to prevent infidelity. Legislatures should repeal criminal prohibitions and alienation of affection statutes, and where legislatures decline to act, courts should strike down adultery penalties as an infringement of constitutionally protected rights of privacy. There are better ways to signal respect for marriage and better uses of resources than policing private consensual sexual activity.
Regulating sexuality
Government has long tried to regulate sexuality, from laws about homosexuality to the ongoing (and recently amped-up) battle over women’s reproductive rights.
But, only a handful of states want to get down and dirty when it comes to infidelity.
So, let’s assess that. Most states are willing to accept that infidelity isn’t great but it’s not criminal, even though it flies in the face of the “sanctity” of marriage. But courts are willing to put a price tag on that (even though poor Mr. Howard was “only” awarded $750,000 while fellow North Carolinian Keith King’s was $8.8 million.
How does infidelity even get a dollar amount on it, and why would the award amounts deviate so radically?
It’s interesting that judges in those states put all the power of the affair in the hands of the lover — as if the wayward spouse has no responsibility at all for their actions. There’s just so much wrong with these kinds of laws.
Is punishment effective?
It is true that infidelity that leads to divorce has an economic impact that reaches beyond the family involved. But that, as well as whatever kind of punishment society puts on people’s sexual lives, is most likely not going to stop someone from risking it.
Rhodes’ comment about “the steady recurrence of infidelity” does more than suggest the “ineffectiveness of trying to use legal sanctions and workplace penalties to prevent infidelity.” It suggests that monogamy is challenging for many of us.
Shouldn’t that be the conversation we should be having?
Want to learn how to talk to your partner about monogamy? (Of course you do!) Read The New I Do: Reshaping Marriage for Skeptics, Realists and Rebels (Seal Press). You can support your local indie bookstore or order it on Amazon. And we’re now on Audible.
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