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Intra-Family Immunities in Tort Actions

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Conjugal fellowship between a husband and wife, and the right of each to the company, society, co-operation, affection and aid of the other in every conjugal relation.

Heart Balm Statutes:
State statutes abolishing causes of action for torts such as alienation of affection, breach of promise to marry, seduction and criminal conversation.

The crime of sexual intercourse or cohabitation between a man and a woman who are related to each other within the degrees wherein marriage is prohibited by law.

Husband and Wife

As stated earlier, the Married Women’s Property Acts ended the husband’s automatic liability for the torts committed by his wife.  Additionally, tort immunity between husband and wife has also been eliminated.  Despite this trend, historically the common law recognized certain intra-familial personal injuries such as the right of consortium.

Specifically, the common law recognized the husband’s right to services from his wife.  These services included a sexual relationship, companionship and other so called “wifely” duties.  As such, if the wife suffered some type of personal injury, this injury extended to the husband.  This right gave the husband the right to sue the guilty party for his imputed injuries, although the wife was the one who had been personally injured.  In addition to compensation for her physical injuries, he also received recovery for her inability to perform her prescribed duties, involving particularly the sexual relationship.

EXAMPLE: On her way home from work three months ago, Julie was hit by a drunk driver.  Her injuries required her to spend several months in the hospital. During this time, her husband Bart had to care for their three children, in addition to working his regular full-time job.  Despite the fact that Julie was injured, Bart is also entitled to compensation for loss of consortium, in addition to the compensatory damages for Julie’s injuries.

Today, the right of consortium also gives a wife the right to recover if her husband is the one injured. 

Given this protection for loss of consortium, it is not surprising that the common law historically recognized tort liability against a person who interfered with the marital relationship.  To be made whole from the interference in one’s relationship, the injured party could bring a “heart balm” action against the offender.  (These actions are better known today as adultery). 

One such action discussed earlier in the courseware is a suit alleging breach of a promise to marry (involved transgressions of the unmarried).  Others include:

  • “Enticement” (the act of persuading a man’s wife to leave him)
  • “Alienation of affection” (the diversion by a third party of a person’s affections)
  • “Criminal conversation” (the commission of adultery with another’s spouse)

The "heart balm" torts involving marriage were all rooted in the notion that a spouse (often only a husband) had a property interest in the other spouse's chastity or affections.  Cases were routinely brought alleging these forms of interference with marriage, and juries were inclined to award damages.

Although adultery continues to be a cause of action in fault-based divorce jurisdictions, most states have abolished these types of torts (starting in the mid-20th century) as stand-alone causes of action.

For instance, in California no cause of action arises for: (a) alienation of affection, (b) criminal conversation, (c) seduction of a person over the age of legal consent and (d) breach of promise of marriage.  See Cal. Civ. Code § 43.5.  In 1935, New York abolished all causes of action for breach of contract to marry, alienation of affections, criminal conversation and seduction. 

In many jurisdictions that followed this path, it was felt that these types of actions were subject to grave abuses and caused monetary damage and emotional injury to many persons who were innocent of any wrongdoing and were merely the victims of circumstance.

EXAMPLE: Hannah and Jake have been married for 10 years and live in Denver.  Jake is extremely jealous.  One day Jake showed up at Hannah’s place of employment to surprise her with flowers and a lunch invitation.  He saw her talking to Craig, her boss.  Jake jumped to the conclusion that she and Craig were having an affair.  Accordingly, he sued Craig for alienation of affections and criminal conversation.  In Colorado the applicable statute reads: “All civil causes of action for . . . alienation of affections, criminal conversation . . . are hereby abolished.”  See C.R.S. § 13-20-202 (2005).  Accordingly, Jake will not be successful in his lawsuit against Craig.  See also Burns Ind. Code Ann. § 34-12-2-1; MCLS § 600.2901; S.C. Code Ann. § 15-3-150.

Intra-family Crimes

Historically, it was difficult to prosecute crimes against members of the same family.  In particular, spousal rape was a foreign concept to most courts.  This stemmed from the traditional view that women were the property of the husband.  As such, he was entitled to treat her any way he wanted and law enforcement personnel and the courts took a hands-off approach to any accusations.  As a result, many abuses went unreported and were not prosecuted.

For instance, several years ago the U.S. Department of Justice Office of Justice Programs published a report on domestic violence statistics (“Extent, Nature and Consequences of Intimate Partner Violence") collected from the National Violence Against Women (NVAW) Survey.  The survey supports the fact that domestic violence is pervasive in the U.S.  For instance, approximately 4.8 million intimate partner rapes and assaults are perpetrated against U.S. women annually and approximately 2.9 million intimate partner physical assaults are committed against U.S. men annually. 

Given the extent of the problem, views of domestic violence have evolved over time.  Violence within the family is no longer considered a private matter.  Rather, statutes have been enacted to protect the victims.  Yet, some jurisdictions have been slow to repeal their old laws.  For instance, in Virginia, no criminal liability for marital rape was still on the books until 2002. 

These changes recognized that violence inside the family unit should be taken as seriously as violence perpetrated by a stranger.  For example, in Texas: “The department [Family and Protective Services] shall adopt and implement rules that require an investigating employee to document indications of domestic violence, including elder, spousal and child abuse.”  See Tex. Hum. Res. Code § 40.0521 (2005). 

Furthermore, Texas has a broad definition of family violence:

  • An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
  • Abuse, as that term is defined by Sections 261.001(1) (C), (E), and (G), by a member of a family or household toward a child of the family or household; or
  • Dating violence, as that term is defined by Section 71.0021.

See Tex. Fam. Code § 71.004 (1) – (3) (2005).

In addition, resources, such as safe houses, are available for someone who is the victim of domestic violence. 

EXAMPLE: Stacy and Neil have been married for five years. After Neil lost his job last year, they moved in with his parents in Houston.  For the past six months, Neil has gotten more depressed about his inability to get another job.  In addition, he has developed a drinking problem and occasionally hits Stacy.  After he recently broke her jaw, Stacy decided to leave and seek help from the authorities by filing a complaint with the police and seeking refuge in a local safe house.

Another tool against domestic violence is an order of protection, which forbids the offending spouse from getting too close to the other spouse.  For instance, a Texas statute on temporary restraining orders states:
After the filing of a suit for dissolution of a marriage, on the motion of a party or on the court's own motion, the court may grant a temporary restraining order without notice to the adverse party for the preservation of the property and for the protection of the parties as necessary, including an order prohibiting one or both parties from:

  • intentionally communicating by telephone or in writing with the other party by use of vulgar, profane, obscene, or indecent language or in a coarse or offensive manner, with intent to annoy or alarm the other;
  • threatening the other, by telephone or in writing, to take unlawful action against any person, intending by this action to annoy or alarm the other;

See Tex. Fam. Code § 6.501 (2005).

EXAMPLE: Shortly after Stacy separated from Neil because he physically abused her, she filed for divorce.  When Neil got the papers, he was livid. He managed to track her down at a friend’s house and threatened to kill her.  Subsequently, Stacy went back to court to get an order of protection against him.  After hearing her case, the court granted Stacy’s request.  If Neil continues to threaten Stacy, she has the authority of the protective order to have him arrested and prosecuted.  See Tex. Fam. Code § 6.501 (2005).

Other criminal activity within the family unit is also subject to prosecution.  These infractions include bigamy and incest.  Much the same as marriage is prohibited between individuals who are too closely related, these prohibitions extend to sexual relationships, particularly incest. Laws against incest have the added benefit of protecting children, who are generally helpless in this situation.

EXAMPLE: Lewis and his wife Peggy have been married for 15 years. They never had their own children; however, Peggy’s nieces, Danielle and Tina (ages 5 and 8) came to live with them after being in foster care with their grandmother for six months.  Peggy’s sister, the girls’ mother, was unable to care for them. Repeatedly over two years, Lewis raped the girls.  He was prosecuted for rape and incest; however, he appealed the incest conviction because he claimed he was not related to the girls by blood. The court disagreed. Under Arkansas law, incest is a Class A felony if the victim is under sixteen (16) years of age and the perpetrator is over twenty-one (21) years of age at the time of the offense.  The incest statute prohibits sexual intercourse or deviate sexual activity with five named categories of persons, including "uncle, aunt, nephew or niece."  Although the word "niece" is not defined in the statute, it commonly includes children of sister-in-laws.  Thus, regardless of the fact Lewis was not related to the girls by blood, he was still guilty of incest (and rape, which he did not challenge).  See Heikkila v. State of Arkansas, 352 Ark. 87 (2003); see also Wade v. State, 2009 Ark. App. 346 (2009).