Cynthia Shackleford’s story sounds like one we’ve heard a thousand times before: Two young people decide they’re soul-mates and get married. For years they live a happily married life. They buy a house and have children. At some point, dissatisfaction sets in. Spouse A uncovers ominous warning signs and hires a private investigator, who reveals that spouse B is having an affair. The marriage ends in a bitter divorce. But Cynthia’s story has an interesting twist: Instead of passively watching as her husband began a new life with his mistress, she took action. Legal action. And in March 2010, she won a $9 million verdict against her husband’s mistress.

Adulterers, or “home-wreckers” as they are now popularly called, have a cultural lineage that extends as far back as their loyal counterparts’. Ever since men and women began living monogamous lives together, there were jealous third parties eagerly awaiting an opportunity to intervene. For centuries, adultery was viewed as a serious crime, which would often result in the death of one or both parties. The collective outrage at such transgressions manifested itself in early American criminal law in the form of liberal pardons for violent acts committed by the aggrieved party. Today, those defenses will, at best, shave a few years off your sentence, rather than result in an outright acquittal.

So what legal weapons do spurned spouses have at their disposal? In most states, none. But a handful of states still recognize a little-known tort called “the alienation of affections.” In Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota and Utah former spouses can sue third parties who allegedly interfered in their marriage. To succeed, the plaintiff must show (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection.

Most states abolished this tort in the early 20th century, viewing it as a relic of a misogynist past in which women were considered their husbands’ property. Yet proponents of these laws argue that it is perfectly appropriate for tort law to offer a remedy when someone knowingly and maliciously interferes in a couple’s union. Seeking to revive this long-dead statute in South Carolina, State Senator James Knott explained, "We protect our automobiles. We protect our homes. There’s laws to protect everything and we just need laws to protect the family."

Certainly, there is some innate appeal to these laws given the social, personal and financial costs associated with breaking up a marriage. Additionally, the law only applies in limited instances: there must be an element of intent, and the defendant can offer the affirmative defense that the marriage was already destined for failure.

There are, however, many problems with these laws, not the least of which is their constitutionality. Law professor Jonathon Turley is one of several legal scholars who believe that these laws violate the landmark Supreme Court decision Lawrence v. Texas. In Justice Kennedy’s provocative majority opinion, the Supreme Court recognized a broad liberty interest in private sexual relations between consenting adults. Alienation-of-affections laws place clear constraints on such relations, making their constitutionality highly suspect.

Moreover, such laws will inevitably upset divorce proceedings. Divorce is often a highly contentious process, and filing a lawsuit against a spouse’s lover would virtually eliminate the possibility of cooperation.

Finally, the laws’ narrow application is further limited by the realities of litigation. The cost of bringing these cases is steep, given that they are highly fact-dependent and will likely require a full trial. Therefore, former spouses will likely bring suit only when the third party has substantial assets. Often, that isn’t the case, and even if it is, the chances of proving all the elements of the offense against a wealthy defendant are fairly low.

Advocates on both sides of the aisle will continue to argue that these pros and cons weigh in favor of their positions. At their core, though, these laws are an attempt to assuage misdirected rage. A marriage is in many ways a lifelong contract between two individuals, and sexual infidelity is a clear breach of that contract. The spurned spouse might rightly feel anger at an intervening third party; however, his or her outrage would be more appropriately directed at his or her spouse — the person who truly broke the marital contract. Undoubtedly, these laws had much greater justification under the old regime in which wives were considered chattel. But in the modern world this argument fails entirely.

As noted in last month’s article about joke-stealing among comedians, there are many immoral and anti-social acts for which there is no legal remedy. In most states, “home-wrecking” is one of them. For all those victims of adultery who did not benefit from a financial windfall like Cynthia Shackleford, take heart; the home-wrecker has unwittingly done you a favor. He or she has taken from you an unfaithful spouse who was poisoning your marriage. And by the time their new home is built, there will be a younger and more attractive suitor waiting to tear it down. 

Greg Demers is a second year law student. He can be contacted at gld34@cornell.edu. Barely Legal appears alternate Fridays this semester.