There have definitely been improvements in sexual freedom the past century. Women who go to bars to meet men and unlucky enough to come under government scrutiny are no longer lobotomized (this was happening as recently as our Second World War). There are fairly settled rules about what is deemed obscene, and it is very hard to prove. The Supreme Court has decriminalized homosexual and probably many other sex acts when done in the privacy of the home.
I hope the trend towards more freedom of consensual sex continues. But some strange laws are still on the books in some states that need looking into.
Take this scenario. Mary and Mortimer are married. Along comes Nathan. He meets Mary, and they like each other. She divorces Mortimer for Nathan and they get married. Mortimer sues Nathan for damages.
Damages? For what, you might ask? Well, Mortimer says that as a result of Nathan’s actions, his wife’s affections were alienated, and he is entitled to be compensated for his loss. Not only that, he feels he should get punitive damages because the act was intentional. Punitive damages exist in law when a jury determines that the defendant deserves to be punished or made an example of (also called exemplary damages) for the heinous nature of the transgression. It is almost always for an intentional act.
If you think allowing damages in this situation is ridiculous in our divorce happy world, most states agree with you. What are sometimes called “heartbalm” laws no longer exist in most juisdictions, having been thrown out with such old fashioned ideas like dowery (payments associated with a marriage). These laws were originally based on a concept of the wife or daughter as a husband’s or father’s property. They took several forms. One even included a suit by a woman who compromised herself on the promise of a marriage that did not happen.
In our federal system, of course, states are entitled to have their own domestic laws (such as for crime or divorce) as long as they do not violate the federal constitution. So, you might, but shouldn’t, be surprised that seven states, New Mexico, South Dakota, Utah and Hawaii, out West, Mississippi and North Carolina down South, and Illinois in the mid-West, all have this type of law. Damages are available there for winning over another man’s wife, even if there is a proper divorce and new marriage. The six above mentioned state may be mostly small (except for Illinois) but together hold around 35,000.000 people, so they make up more than ten percent of our country’s population.
As long as these laws apply equally to men and women (they were not written that way originally) they would likely be found constitutional. I can think of only a couple of legal theories under which it might be deemed that the law is unconstitutional, but I’m not going to go down that road here, and just deal with them as they exist by statute in these few states. The question here is, are these actually a reasonable idea. There is one relatively simple reason to argue that it is.
Marriage is, of course, a contract, albeit a very unique one, with many social and religious aspects. You could look at this from a purely legalistic and contractual viewpoint. If I deliberately induce someone to violate their contract in the commercial world, I would likely be liable for damages. So, you could argue that this is what has occurred in these heartbalm cases, and the fact that marriage is a unique type of contract doesn’t matter.
But you might also look at it in the same legalistic framework from the viewpoint that we are all entitled to compete for contracts, and the fact that someone wants to do business with us, instead of who they used to do business with, is just the loser’s tough luck, as with any other business.
Besides, particularly in a case where the married person determines to get divorced, have they not complied with the legal requirements to end the contract? Why should a new suitor get penalized for making a new contract with her - even if she leaves the first relationship for the new one?
I just left a cable company after hearing after being barraged by the telephone company’s advertisements of its telcom package because I was really angry at the cable company, which I thought did not treat me right (not that I’m dumb enough to think Verizon will be any better). Should Cablevision be allowed to sue Verizon? Of course not.
It also might seem strange that if Nathan just repeatedly slept with Mary, but she and Mortimer never got divorced, that Mortimer would have no claim for compensation. To do so would basically render his wife a prostitute sanctioned by the state. So, for not doing what society probably would want in this case – Mary and Mortimer to divorce, and Mary and Nathan to marry, Mortimer gets rewarded by not having a lawsuit against him.
Let me use an analogy here to show another reason why heartbalm laws are just a bad idea and should be eradicated everywhere. We are heavy into income redistribution in America, particularly with the personal injury system, which sometimes does act to compensate injured people, but often seems to be some type of institutionalized fraud. I don't have to explain it because everyone knows the way it works. We've seen the bumper stickers -- Hit me -- I need the money.
But as a way of handling the taking of money from one person to compensate a person they have (supposedly) injured, we have a system requiring car insurance in most states. Other liability insurance is almost de rigueur, such as homeowner’s insurance when there is a mortgage involved and many other instances.
So, the costs to a person in this situation are spread out among the rest of us by the insurance system. We each pay something to the insurance company, and they use the money to pay out the claims or verdicts against those who are sued. We even have a system to bail out insurance companies that go under. So, even when the suit is unfair and the plaintiff gets rewarded, society pays, not the individual. At least that is usually the way it works now.
This spreading of costs doesn’t exist in the heartbalm world. You can’t get insurance against liability for marrying someone else’s divorced wife if you are the reason she left. Thus, whether you collect anything, has much to do about whether you have a rich target or not. It’s not worth bringing one of these suits against someone without lots of money because there’s no insurance to pay off at the end of the day.
These awards, rare as they are now, seem to be more perfect vehicles for fraud than even personal injury actions, where there is at least some type of medical testimony, however phony it might be.
I am sure that some people would be devastated if they lost their wife (or husband), both emotionally and financially. But others would be overjoyed and possibly enjoy a savings. How do we tell the difference? Sometimes the person left behind, absolutely deserves to have been left. How would a jury ever know? Anybody can tell a sob story. People are excellent liars. The phrase, “Well, if he/she is lying, they are the best actor in the world” is just nonsense. People practice lying since they are little and get very good at it. In fact, a major concern here is that spouses will use the threat of a suit against the new boyfriend/girlfriend as a way to increase their share of the divorce proceeds.
Not surprisingly, some heartbalm awards have gone into the millions. One such recent case from Mississippi has been written up in the national media. A married woman took a job with a company owned by a millionaire, who was also married. They fell in love. They both got divorced before marrying. Now, the woman's ex-husband has successfully sued the new millionaire husband under the heartbalm statute. The Mississippi high court has refused to hear the case, so the defendants are trying to get to the Supreme Court of the United States. I very much doubt they will, unless the court is looking for something not so heavy to handle. It’s just not considered a matter of national importance at this time. So, the millionaire is probably stuck.
At some point in our lives we usually figure out that if we are not in a relationship ourselves it is very hard to judge what is going on there, and who, if anyone, is at fault. That’s one reason most states have taken the fault aspect out of divorces (although not in New York, where I live, unless it is by agreement of the parties). If fault is that difficult to figure out in a divorce, why would it be any different in a heartbalm situation? Neither judge nor jury is capable of determining why a couple split up with only the parties’ words to decide upon.
Moreover, all of the states have implemented a system to manage the financial issues in divorces, which try and be fair, at least in theory. This may not have been true a few decades ago, but it is now. Presumably, when the two Mississippi couples got divorced, they either settled on economic terms, or, a court made economic awards under their state laws. Why should the husband of the woman who legally left him get an advantage of payment from the new husband as well, even though fault is not allowed to be a factor in dividing up marital assets? Not only that but the millionaire’s ex-wife may not be able to sue her husband’s new wife with any good result either, despite the fact that she may be liable to the ex-wife, because she may not have the money to pay off a judgment (remember, no insurance). It begins to seem very unfair. Then, again, that’s law.
Some things just should not have legal remedies. Our country stopped prosecuting for adultery a long time ago in every state. I didn’t think there had been any such prosecutions for many years, until I saw a report of one in 2003 down South.
Hearbalm statutes should go the way of the dodo bird as, for example, did the law of criminal conversation (where even an unmarried person who sleeps with a married person has also committed a crime). Let’s hope that these moralistic will continue to be eradicated rather than proliferated, among all the states, along with many other consensual sex crimes.
Speaking of which, I was very happy to see that a young man, who had sex with his fifteen year old girlfriend when he was just seventeen himself, had his ten year sentence reduced to one year by the Georgia State Supreme Court, which found the penalty grossly disproportionate to the crime. At some ages, consensual sex laws protect children, but in many cases, it victimizes them, such as here. All this young man did was sleep with his girlfriend. Jail should not even have been an option here, if any penalty.
The Supreme Court of the United States has not recognized the disproportionality of a sentence as a valid reason to reduce it. This case might be appealed and the Supreme Court could decide the issue if they chose to. I hope not, because I am pretty sure this court would reverse it. Those guys don’t read my blog.
- I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .