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23 Ariz. L. Rev. 323 (1981)
Alienation of Affections and Criminal Conversation: Unholy Marriage in Need of Annulment

handle is hein.journals/arz23 and id is 339 raw text is: Alienation of Affections and Criminal Conversation: Unholy Marriage in Need of Annulment Kay Kavanagh There are two primary rights in the case; one is the right of the plaintif to the body of his wife, and the other to her mind, unpolluted Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a sepa- rate intellectual and emotional makeup. 2 The torts of alienation of affections and criminal conversation both involve interference with the marital relationship3 and often arise out of the same set of events. Indeed, the actions frequently are brought against a defendant in a single suit by an aggrieved spouse.4 The actions, however, are independent,5 each purporting to protect a different interest and each involving different items of proof and defense.' This Note will explore the elements of the two causes of action and the recognized defenses to each. Next, justifications for and modem treatment of the actions will be examined. The modem justification for the action will be analyzed and criticized in light of the legal changes 1. Sullivan v. Valiquette, 66 Colo. 170, 172, 180 P. 91, 91 (1919), cited in McMillan v. Fel- senthal, 482 S.W.2d 9, 11 (Tex. App. 1972), aj7'd, 493 S.W.2d 729 (Tex. 1973). 2. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 3. Skaggs v. Stanton, 532 S.W.2d 442, 443 (Ky. 1975) (holding there is only one tort-inter- ference with marriage); W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 124, at 876-77 (4th ed. 1971); Note, The Casefor Retention ofCauses ofActionfor Intentional Interference with the Marital Relationship, 48 NOTRE DAME LAW. 426, 426-29 (1972). 4. See, e.g., Bearbower v. Merry, 266 N.W.2d 128, 129 (Iowa 1978); Giltner v. Stark, 219 N.W.2d 700, 703 (Iowa 1974); Kremer v. Black, 201 Neb. 467, 477, 268 N.W.2d 582, 587 (1978) (McCown, J., dissenting) (jury rejected plaintiff's claim for alienation of affections but allowed recovery for criminal conversation). 5. Bearbower v. Merry, 266 N.W.2d 128, 130 (Iowa 1978). (While both criminal conversa- tion and alienation of affections belong to the same class, arise from the marital relationship, and seek damages for loss of consortium, they are separate and distinct, quoting Giltner v. Stark, 219 N.W.2d 700, 704 (Iowa 1974); Tarquino v. Pelletier, 28 Conn. Supp. 487, 488, 266 A.2d 410, 411 (1970) (construing Connecticut's statute abolishing alienation of affections as leaving intact the action for criminal conversation); accord, Kromm v. Kromm, 31 Md. App. 635, 637, 358 A.2d 247, 249 (1976). Contra, Skaggs v. Stanton, 532 S.W.2d 442, 443 (Ky. App. 1975) (only one tort- interference with the marital relationship). 6. See text & notes 7-24 infra.

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