ALIENATION OF A CHILD'S AFFECTIONS' ANCESTOR: ALIENATION OF AFFECTIONS
Alienation of affections has existed as a civil action since the eighteenth century.
(31) These torts were meant to protect the rights of husbands and fathers to "the chastity of their wives and daughters." (32) Seduction has since then evolved into what is now criminal conversation, while enticement thereafter became the modern-day alienation of affections. (33) Though the Anglo-Saxons developed the predecessor of alienation of affections, they did not come up with its name.
Despite that enticement was sporting a new name, the right to bring an alienation of affections action still belonged only to men.
Positive fervor with alienation of affections began to decline in the latter half of the twentieth century; by its end, most states had eliminated this cause of action.
(27.) See Bishop, 96 S.E.2d at 873 ("The wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections.").
Merry, 266 N.W.2d 128, 130 (Iowa 1978) (noting--in a case before the tort was abolished--that "[t]he only general defenses to an action for alienation of affections are plaintiffs consent, defendant's lack of knowledge of the existence of the marriage, and the statute of limitations").
2d at 1020 ("[T]his Court declines the invitation to abolish the common law tort of alienation of affections in Mississippi.").
(58.) Michele Crissman, Note, Alienation of Affections: An Ancient Tort--But Still Alive in South Dakota, 48 S.D.
(69.) See FRIEDMAN, supra note 59, at 119 ("The rule that a woman was not entitled to sue for alienation of affections or criminal conversation weakened considerably in the early twentieth century and even earlier in some states.").
Upholding the award, the South Dakota high court noted that 34 states have statutorily abolished the tort of alienation of affections
, but only five states have done so judicially--the course of action advocated by Kennedy.
2014); Michele Crissman, Comment, Alienation of Affections: An Ancient Tort - But Still Alive in South Dakota, 48 S.D.
There are three elements, in addition to the language of South Dakota Codified Laws section 20-9-7, that must be met in order to bring a cause of action for alienation of affections: 1) wrongful conduct by the defendant with specific intent to harm the relationship, 2) loss of consortium, and 3) causal connection between the defendant's conduct and the loss of consortium.
The Supreme Court of Utah further stated that "an action for alienation of affections is no longer based on the premise that either spouse constitutes the 'property' of the other, but on the premise that each spouse has a valuable interest in the marriage relationship...." Id.
(242.) See Crissman, supra note 146, at 529 (stating that the alienation of affections tort "was created a remedy for 'wife-stealing' during a time when wives were considered their husband's property," but was expanded to being a gender-neutral tort).