Heart Balm Actions Survive Constitutional Challenge

Caselaw Update: “Heart Balm” Actions are Constitutional

In a recent North Carolina Court of Appeals decision, the common law torts of alienation of affection and criminal conversation (collectively referred to as “heart balm” actions) were upheld as constitutional.  Both claims allow a person to sue a third-party who had an affair with his or her spouse.  North Carolina is one of only a handful of states that still allows these lawsuits.  Despite being used frequently in North Carolina, they have been under fire since the mid-1980s as antiquated and rooted in misogyny.

The latest attack on their validity stemmed from a lawsuit filed against Dr. Williams of Forsyth County.  Dr. Williams had an affair with Mr. Malecek’s wife.  After discovering the affair, Mr. Malecek filed suit against Dr. Williams for alienation of affection and criminal conversation.  Dr. Williams responded by filing a motion to dismiss stating that both causes of action violate the First and Fourteenth Amendment.  The trial court agreed with him and dismissed the claims.  Mr. Malecek appealed the decision.

In Malecek v. Williams, the North Carolina Court of Appeals rejected the argument that alienation of affection and criminal conversation violated the First and Fourteenth Amendments.  The Court decided that, while the First Amendment’s freedom of speech, freedom of expression and freedom of association and the Fourteenth Amendment’s Due Process Clause are all implicated by the lawsuits, the lawsuits do not violate the Amendments.

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Regarding the First Amendment, the Court ruled that even though sexual activity can be an expression protected by the First Amendment, the lawsuits do not seek to regulate the content of the expression.  Since the laws seek to prevent and remedy an injured spouse as well as to protect the institute of marriage, which are both substantial state interests, the laws do not violate the U.S. Constitution.  Similarly, regarding the Fourteenth Amendment’s Due Process Clause, the Court observed the liberty interest an individual has to intimate sexual relations with another consenting adult is not a fundamental right and can be regulated if there is injury or abuse of an institution.  Here the injury to the spouse and the potential abuse of the institute of marriage serve as substantial state interests warranting both causes of action.

Despite upholding the constitutionality of both lawsuits on the facts presented in this case, the Court did remark that different facts may result in a different opinion.  For instance, if a close friend who counseled a spouse to leave an abusive relationship is sued for alienation of affection, the Court may rule differently.

Dr. Williams may or may not appeal the Court of Appeals’ decision to the North Carolina Supreme Court.  If he does, the Supreme Court may reach a different result.  But for now, alienation of affection and criminal conversation remain viable tools to use in a North Carolina divorce case.

If you’re prosecuting or defending an alienation of affection or criminal conversation case, our attorneys have jury trial experience in heart balm actions.  Contact us today to discuss your options.

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