Alienation of affections has existed as a civil action since the eighteenth century.
32) Seduction has since then evolved into what is now criminal conversation, while enticement thereafter became the modern-day alienation of affections.
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.
To date, six states have judicially abolished alienation of affections on some or all of these grounds.
2d at 873 ("The wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections.
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.
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.
1957) (stating that although "[t]he wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections," most cases have this conduct as "the controlling or effective cause of alienation").
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).
145) For example, opponents of same-sex marriage who favor the tort of alienation of affection create a moral dilemma.
In South Dakota, this cause of action can be brought against one who seduces a spouse by using the alienation of affection tort and when a valuable interest in the marriage is lost due to the adulterous activity.
240) Conversely, despite these elements being satisfied, it seems unlikely that a court would recognize a cause of action for alienation of affection because technically there is no adultery under the language of South Dakota Codified Laws section 25-4-3, which only recognizes adultery as a relationship between two people of the opposite gender.
Alienation of affection is different from adultery in the sense that it is a tort claim that can be brought against the person who committed adultery with one's spouse, while adultery is a ground for divorce that is brought against the spouse.