Let betrayed spouse sue mistress for damages

This story was first published in The Straits Times on Nov 16, 2013

The Canada-based Ashley Madison website hooks up married people for no-strings-attached sex.

After it announced it was "coming in November" to Singapore, a public outcry ensued and the Media Development Authority (MDA) decided to block the site.

Every act of adultery is presumably engaged in out of the free wills of both parties. In contrast, every act of marrying, whatever the words of the marriage vow uttered, is the free will forming of a partnership for life between a man and a woman which requires both parties to stay faithful to each other in two senses. The first is sexual and the other emotional.

In fact, violating your spouse's expectations of emotional fidelity can be even more devastating than sexual infidelity. This is why, in one sense, hooking up for no-strings-attached sex of the Ashley Madison variety, while adulterous, may be considered less of an infraction on the marital vow than a long-drawn affair between two colleagues or friends.

In the latter case, the married person crosses the line to share more of his or her struggles, fears and joys with the lover, rather than the spouse. This sharing of the inner self which speaks to an emotional oneness of the kind meant only for the spouse is the essence of emotional infidelity, which can be described as an impermissible intimacy of which sex is merely the physical expression.

The uproar over Ashley Madison has focused too much on sexual fidelity whereas emotional fidelity is arguably even more significant. The wronged spouse suffers injury precisely because of that betrayal of the soul connection with his or her spouse, of which the sex act is an expression.

In fact, adultery involves not just two people, but a third or even a fourth, if both are married.

These parties suffer injury because of that betrayal of the heart but they are never compensated because there is no law here for adultery-based claims by which the injured spouse may sue the third party for compensation.

Interestingly, some states in the United States actually have such laws - dubbed "heartbalm laws" - to protect the sanctity of marriage from third party intrusions. Wronged spouses have, in the last dozen years, been awarded millions of dollars for their hurt under the law of "alienation of affection" (where a third party causes estrangement between spouses) and the law of "criminal conversation", archaic language for illicit sex.

For example, in Puryear v Devin (2011), the North Carolina Superior Court awarded US$30 million to Mrs Carol Puryear against Ms Betty Devin, the proverbial "other woman". Ms Devin had to pay Mrs Puryear for the adulterous liaison the former had with the latter's then-husband.

In 2010, the state had seen Ms Cynthia Shackelford suing Ms Anne Lundquist for breaking up her 33-year marriage and going on to win an award of US$9 million.

In recent times, with US society's more liberal attitude towards adultery and divorce, however, 45 states out of all 50 as well as the District of Columbia have abolished these laws or severely limited their applicability to, say, three years from the last known adulterous act. So although heartbalm laws remain in a few other states, North Carolina has been the only state where huge awards have been given out in recent years.

According to Boston University don Laura Korobkin, writing in Criminal Conversations (Columbia University Press, 1998), these laws were initially used in 17th century England to establish the grounds for a man to divorce his (adulterous) wife. Over time, these laws became available for action by the cuckolded husband to sue his wife's paramour. A cheated wife, however, did not have such recourse.

Heartbalm laws were abolished in England in 1857, which may be why they don't exist on law books in Singapore. In the US, which had adopted these laws from the old country, however, they were not abolished. Instead, in the late 19th and early 20th centuries, many states simply extended the right to the wife too.

In the 1930s and again in the 1960s, most states began doing away with them, but North Carolina stays in the vanguard, continuing not only to apply them but also to beat back activist efforts to get the state legislature or appeals court to abolish these laws.

But if law is one of the ideal instruments by which a government expresses the norms it wishes to encourage, perhaps Parliament could pass heartbalm laws here too to help curtail adultery.

Why stop at banning Ashley Madison? Introduce laws that would allow betrayed spouses to sue the third party for damages.

Opponents may assert that such laws can't deter infidelity but that claim has never been empirically demonstrated. A campaign to publicise such laws could well deter some third-parties- to-be.

Such laws would not criminalise adultery, but would merely let the injured party seek compensation. This would be a tort claim - a civil suit, not a criminal case. Such laws (torts) are more about righting a wrong than deterrence.

Others may argue that the third party could not get the straying spouse into bed if he did not want to, so he should be blamed instead.

But this underestimates the power of seduction. More pertinently, if a third party interferes to break a contract between two people, that person is held responsible, so it should be the case too for adultery.

Another criticism is that the courts might be deluged. But even in North Carolina, which has a history of generous awards to the injured parties, there has been no flood of cases there. Its state appeals court considered "alienation of affections" only 88 times from 1913 to 2012.

Finally, it is also said that money cannot heal infidelity hurts and monetary awards only commodify marriage. Of course, money can't put Humpty Dumpty back together again, but there is no reason to deny this hurt compensation, when pain and suffering suffered in a motor vehicle accident or a medical malpractice may be compensated. At least, the wronged spouse gets help with setting up a new life. And retail therapy from spending it.

This story was first published in The Straits Times on Nov 16, 2013

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