Under the common law, there was a tort for criminal conversation with a spouse. Although most states have enacted statutes that have abolished the tort, there are a few states in which a spouse may bring an action against a third party for the tort.
Criminal conversation with a spouse is defined as having sexual intercourse with the spouse. A third party is liable to the other spouse for the harm that was caused to the other spouse's legally protected marital interests. A spouse's legally protected marital interests include the affection, society, and companionship of the other spouse, exclusive sexual relations with the other spouse, and the services and support of the other spouse. Either a husband or a wife is entitled to bring an action for criminal conversation with a spouse.
A spouse is entitled to bring an action against a third party for criminal conversation if the third party, without the consent of the spouse, engages in sexual relations with the other spouse. The spouse does not need to incur any other loss. One act of sexual relations is sufficient for the action. If the third party also alienates the affections of the other spouse or if the act of sexual relations results in a loss of services on the part of the spouse, the spouse may be entitled to additional damages.
The tort of criminal conversation applies when a third party rapes a married woman. The tort also applies to a third party who commits an act of adultery with a spouse, even if the spouse who is participating in the act of adultery solicits the act. Although the consent of the spouse who is bringing the action is a defense to the tort of criminal conversation, the consent of the spouse who is participating in the act of adultery is not a defense.
A third party does not need to know that a person is married in order to be liable for the tort of criminal conversation. A third party who engages in sexual relations with a person assumes the risk that the person might be married. Also, the fact that the person misrepresents his or her marital status is not a defense.
A spouse who is successful in his or her action for criminal conversation is entitled to damages for his or her emotional distress as a result of the act of sexual relations. However, if the spouse neglected his or her spouse, his or her damages may be reduced. If the other spouse repeatedly engaged in acts of sexual intercourse with the third party, the spouse's damages may be increased. The spouse may also be entitled to damages for his or her loss of exclusive cohabitation, for his or her loss of affections, or for his or her loss of services. The spouse may further be entitled to damages for any medical expenses that he or she incurred as a result of the third party's actions.
Copyright 2005 LexisNexis, a division of Reed Elsevier Inc.