Criminal Conversation (Just Sex)

Criminal Conversation is likely the most misleading term you will hear or read today.  Criminal conversation, briefly mentioned in this prior blog on Alienation of Affection, is today’s topic.

Criminal Conversation is an act of adultery between a person and the spouse of another.   This tort, meaning a civil wrong, commonly arises in Alienation of Affection situations, but differs greatly from AOA.  Alienation allows a wronged spouse to sue the “significant other” of the guilty spouse for the breakdown of the marriage. It requires proof of 3 elements;  1) Wrongful Conduct, 2) loss of affections, and 3) a causal connection.

In Criminal Conversation if you have sex with a married person, who is not your spouse, you are guilty.  There is no defense to the tort of criminal conversation.

Consent of the wife is no defense. The fact that the wrongdoer did not know the wife was married, but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The fact that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his fault is no defense.

Criminal Conversation has been hailed as “notorious for affording a fertile field for blackmail and extortion” and action may be brought “not for the purpose of preserving the marital relationship, but rather for purely mercenary or vindictive motives.”Kline v. Ansell, 287 Md. 585414 A.2d 929, at 931. (1980). Courts have found that this tort is “incompatible with today’s sense of fairness” because there are no defenses to a cause of action. Id.

Several arguments have been advanced for the abolition of it, including;

  • (1) a woman is no longer the property of her husband;
  • (2) the tort has no deterrent effect;
  • (3) a cause of action may be brought for vindictive purposes;
  • (4) the potential for abuse is great;
  • (5) the tort is devoid of any defenses; and
  • (6) determining damages, meaning money, is difficult. 

So now that you are sweating about this, rest easy.  Criminal Conversation was abolished by the MS Supreme Court in 1992 in the case of Saunders v. Alford, 607 So.2d 1214 (Miss. 1992).  Alienation of Affection, however, is alive and well.

Matthew Thompson is a family law attorney in Mississippi.  If you need to have a conversation with a lawyer about family law you know who to call.

Follow the blog: BowTieLawyer 

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

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