Criminal conversation

Part of the common law series
Tort law
Intentional torts
Assault Battery False imprisonment Intentional infliction of emotional distress Transferred intent
Property torts
Trespass land chattels Conversion Detinue Replevin Trover
Defenses
Assumption of risk Comparative negligence Contributory negligence Consent Necessity Statute of limitations Self-defense Defense of others Defense of property Shopkeeper's privilege
Negligence
Duty of / standard of care Proximate cause Res ipsa loquitur Calculus of negligence Rescue doctrine Duty to rescue Negligent infliction of emotional distress Employment-related Entrustment Malpractice legal medical
Liability torts
Product liability Quasi-tort Ultrahazardous activity
Nuisance
Public nuisance Rylands v Fletcher
Dignitary torts
Defamation Invasion of privacy False light Breach of confidence Abuse of process Malicious prosecution Alienation of affections Criminal conversation Seduction Breach of promise
Economic torts
Fraud Tortious interference Conspiracy Restraint of trade
Liability and remedies
Last clear chance Eggshell skull Vicarious liability Volenti non fit injuria Ex turpi causa non oritur actio Neutral reportage Damages Injunction Conflict of tort laws Joint and several liability Comparative responsibility Market share liability
Duty to visitors
Trespassers Licensees Invitees Attractive nuisance
Other common law areas
Contracts Criminal law Evidence Property Wills, trusts, and estates
Law portal

At common law, criminal conversation, commonly known as crim. con., is a tort arising from adultery, abolished in almost all jurisdictions. (Conversation is an old expression for sexual intercourse that is obsolete except as part of this term.)

It is similar to breach of promise, a tort involving a broken engagement against the betrothed, and alienation of affection, a tort action brought by a spouse against a third party, who interfered with the marriage relationship. These torts have been abolished in most jurisdictions.

History of criminal conversation

1782 cartoon by James Gillray, depicting Sir Richard Worsley helping George Bisset view his wife, Seymour Fleming, naked in a bath-house. The caption reads: "Sir Richard Worse-than-Sly / Exposing his Wifes Bottom; – O fye!"

Initially, criminal conversation was an action brought by a husband for compensation for the breach of fidelity with his wife. Only a husband could be the plaintiff, and only the "other man" could be the defendant.

Suits for criminal conversation reached their height in late 18th and early 19th-century England, where large sums, often between £10,000 and £20,000 (worth upwards of £10–20 million in today's terms), could be demanded by the plaintiff, for debauching his wife. These suits were conducted at the Court of the King's Bench in Westminster Hall, and were highly publicised by publishers such as Edmund Curll and in the newspapers of the day. Although neither the plaintiff, defendant, nor the wife accused of the adultery was permitted to take the stand, evidence of the adulterous behaviour was presented by servants or observers.

A number of sensational cases were heard in the second half of the 18th century. In the 1769 case of Grosvenor v. Cumberland, Lord Grosvenor sued the King's brother, the Duke of Cumberland for criminal conversation with his wife, being awarded damages of £10,000. In the 1782 case of Worsley v. Bisset, Sir Richard Worsley won a technical victory against George Bisset, but was awarded the desultory sum of only one shilling damages: the fact of adultery was not contested, but it was found that he had colluded in his own dishonour by showing his friend his wife, Seymour Dorothy Fleming, naked in a bath-house. In 1796, the Earl of Westmeath was awarded £10,000 against his wife's lover, Augustus Bradshaw.

The tort was abolished in England and Wales in 1857.

In Ireland it survived until 1981. Prior to that date, a man could sue anyone who slept with his wife, regardless of whether the wife consented – except that if the couple was already separated the husband could only sue if the separation was caused by the person he was suing.

Criminal conversation still exists in parts of the United States, but the application has changed. At least 29 states have abolished the tort by statute and another four have abolished it judicially.

Current usage

The tort of criminal conversation seeks damages for the act of sexual intercourse outside marriage, between the spouse and a third party. Each act of adultery can give rise to a separate claim for criminal conversation.

The tort is still recognized in a number of states in the United States, although it has been abolished either legislatively or judicially in most.

The tort has seen particular use in North Carolina. In the case of Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), the North Carolina Court of Appeals (the state's intermediate appellate court), abolished the tort of criminal conversation, as well as the tort of alienation of affections, in the state. However, the North Carolina Supreme Court summarily vacated the Court of Appeals' decision shortly thereafter, saying in a brief opinion that the Court of Appeal had improperly sought to overrule earlier decisions of the Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). In 2009, the General Assembly approved legislation which placed some limits on such lawsuits. The bill was signed into law by Governor Bev Perdue on August 3, 2009, and is codified under Chapter 52 of the North Carolina General Statutes:

§ 52-13. Procedures in causes of action for alienation of affection and criminal conversation.

(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.

(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.

(c) A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.

Each of the three limitations arose from a recent North Carolina legal case involving the tort. In Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385 (2009), the North Carolina Court of Appeals had held that the tort applies even to legally separated spouses. In Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006), the North Carolina Supreme Court held that the statute of limitation commences when the affair should have been discovered rather than when it occurred. In Smith v. Lee, 2007 U.S. Dist. LEXIS 78987, the Federal District Court for the Western District of North Carolina noted that the question of whether an employer could be held liable for an affair conducted by an employee on a business trip was still unsettled in North Carolina.

Further reading

• Lawrence Stone (1990). "Honour, morals, religion and the law: The action for criminal conversation in England 1670–1857". In Grafton, Anthony; Blair, Ann. The transmission of culture in early modern Europe. University of Pennsylvania Press. pp. 276–316. ISBN 0-8122-1667-9.
• Hallie Rubenhold (2008). Lady Worsley's Whim: An Eighteenth-Century Tale of Sex, Scandal and Divorce. Chatto & Windus. ISBN 978-0701179809.