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Heart Balm Torts: Playing Doctor and Nurse (Malecek v. Williams 2017)

By Carolyn J. Woodruff, North Carolina Family Law Specialist

Winston Salem, North Carolina: Malecek v. Williams (2017)

Derek Williams is a Forsyth County doctor who had an affair apparently, or at least allegedly, with his nurse. Playing doctor-nurse games got them in trouble with the nurse’s husband, Marc Malecek. The nurse’s then-husband Marc sued Derek for alienation of affection and criminal conversation.

What is alienation of affection? This heart balm tort is something like an automobile accident where a marriage is rear-ended. This alienation of affection requires a spouse to prove that he or she had a genuine marital relationship and that marriage relationship was interfered with by a third party paramour, causing damages. What is criminal conversation? That is simpler. That is sex with someone’s spouse creating damages. Frequently the damages might be one dollar, which is required to reward if sex is found with someone else’s spouse. Of course, in North Carolina damages for alienation of affection and criminal conversation has been as much as $30 million.

Interestingly enough, Derek Williams was sued by Marc Malecek in May of 2016. The Honorable Todd Burke dismissed the lawsuit indicating that alienation of affection and criminal conversation were unconstitutional. There had been several other cases wherein judges had found or not found alienation of affection and criminal conversation to be unconstitutional.

For now, the North Carolina Court of Appeals has spoken on the constitutionality of alienation of affection and criminal conversation. These heart balm torts are constitutional, according to Court of Appeals Judge Richard Deitz.

There are two lines of analysis put forward by the defendant Derek Williams declaring that alienation of affection and criminal conversation were unconstitutional: freedom of speech and expression and due process rights under the United States Constitution’s 14th Amendment.

Let’s first look at freedom of speech. With these heart balm torts, freedom of speech is a little hard to understand, because there is very little speech involved. Perhaps one might say it’s more expression in the bedroom. Further, please note that the word “conversation” in the tort of criminal conversation has nothing to do with talking. Do conversations that interfere with a marriage give rise to alienation of affection? What if your next door neighbor urges you to leave a spouse? What if your mother urges you to leave your spouse? Can your mother and your neighbor be sued for alienation of affection? That issue is left open. But, for now, the North Carolina Court of Appeals has indicated that restrictions on having sexual relations with another person’s spouse are only an “incidental burden” on freedom of speech.

Now, let’s look at the due process rights under the 14th Amendment of the US Constitution. In 2003 the United States Supreme Court gave us the decision of Lawrence vs. Texas. In Lawrence, a Texas criminal statute on same-sex conduct was stricken as being unconstitutional. The buzz words became “consensual sexual activity” should not be restricted. There is a little caveat, however, that Judge Richard Deitz analyzes in his Court of Appeals opinion. This nuance is that the consensual sexual activity must not present injury to another person or institution that the law protects. Judge Deitz indicated that “marriage seems an obvious choice,” as an institution that North Carolina has an interest in protecting.

These heart balm torts arose out of old England when women and chickens were property. They may be used for legalized blackmail in divorce cases, but for now, in North Carolina and five other States, these heart balm torts are alive and well.

Are heart balm torts a deterrent to affairs? I would love to hear your comments.