By: LINDSEY O'NEILL, ESQ
If a husband has an affair with another woman, should the wife be able to sue the other woman for emotional damages? What if the couple isn't married..... should the girlfriend of a cheating boyfriend be able to sue the other woman for the adultery? Or vice versa - should a man be able to bring a lawsuit against an affair-partner? Should any injured partner in a relationship be able to sue the pants off someone who snuggled up to their honey? (Well, technically, their pants were already off, but anyhow.....) Now, my question here is limited specifically to the situation in which the couple appears to be happy - he tells his girlfriend how much he loves her, they have all kind of fun with their friends, everything appears to be great...... but he's secretly having an affair, intentionally lying to his girlfriend.... and the other woman agrees to carry on the affair under wraps.
Put it this way, the betrayed party has many choices for dealing with their partner when an infidelity is discovered - divorce, break up, stay together, throw things at him.... you know. The point is, there is some level of accountability for the betrayer - he loses his wife or girlfriend, may have to pay spousal support in divorce, will likely bear the wrath of family and friends, etc. Even if a he begs her for forgiveness and gets lucky enough to get a second chance, he'll have to go through the arduous process of earning back her trust, which usually includes a loss of certain freedoms previously enjoyed, etc. What about the affair-partner? There is that age-old argument.... "Well, its not HER fault.... the husband is the one who chose to break his marriage vows.... the affair-partner didn't make any vows to the wife, why should SHE be held responsible." Well, why shouldn't she bear some responsibility? She's equally at fault! SO WHAT if she didn't make any commitments to the wife or girlfriend. Does that make it right for her to go after someone else's husband or boyfriend? Does that make it right that she should participate in the lie, the deceit, the fraud? Does that make it OK to intentionally harm and cause emotional injury to the innocent wife or girlfriend? Even if the doggish man pursued her.... she still knowingly entered into the affair.
Here's the thing - we've decided as a society that certain behaviors are not OK. As a result, we've decided that there are certain standards by which people are obligated to act. We expect people to act according to "that degree of care that an ordinarily prudent person can be reasonably expected to exercise under similar circumstance." If someone acts "unreasonably" in those situations, then they can be sued for the harm caused to a third person as a result. For instance:
If you are injured by a driver who failed to exercise reasonable care when driving on the freeway, you can sue them because all drivers have a duty to act reasonably to prevent harm to other drivers. Doctors are supposed to perform their duties as any other reasonable doctor would in a similar situation, or else face liability for medical malpractice. Store owners must put up a sign when a floor is wet, because society considers that to be the reasonable way to act to prevent someone from slipping and falling. Homeowners must warn guests in their home of any sort of danger that may be posed by an ongoing remodeling job of the kitchen. If someone punches you, you can sue them for injuries for intentionally hurting you! You can even sue someone for intentionally harming you emotionally and psychologically. If someone tells a bunch of lies about you, you can sue them for defamation and damaging your reputation. You can sue the manufacture of a toy for failing to adhere to certain standards to make the toy safe to play with. You can even sue someone for interfering with a potential business relationship - for convincing someone to breach a contract with someone else. ..... but in most states you can't sue an affair-partner for interfering with the most important relationship of your life? Or for helping them to break their commitments or vows to their wife/girlfriend or husband/boyfriend? Isn't it reasonable to expect that other people won't have a secret affair with your spouse? [Note: A handful of states do allow a wife to sue the mistres.... these states have what is called "alienation of affection" laws that allow a spouse to sue the person who 'seduced' the spouse and 'alienated' the spouse away from his/her husband or wife. However, the lawsuits are fairly uncommon, in part, because its difficult to actually collect any real damages from the affair-partner.)
Now, alright, I know I'm simply discussing general legal principles here and applying them to the circumstance of the "other woman" or "other man." But.... it just seems right to me that people should be held accountable for the harm they cause to others - especially harm to the things most of us consider to be the most valuable, fundamental relationships in our lives. So sound off people.... What do you think? Should we hold those good-for-nothing, deceitful, behind-the-back, home wrecking, boyfriend-stealing, girlfriend-wielding, petty, pantiless, pathetic people responsible?? Or should they get off Scot-free? All we'd be doing is holding them accountable, along with the cheater, for failing to act the way we expect anybody else to act, the way we expect any ordinary person, any reasonable person, to act. And, hey, if the affair-partner were required to pay damages to the innocent spouse for the injuries she caused, then perhpas there would be a deterrent effect and less cheating would result all around. Just a thought....
Let me know what you think! Looking forward to your comments .... Just scrowl down and have YOUR say!
UPDATE: March 2010: In North Carolina, a wife wins a $9M lawsuit against her husband's mistress for "alienation of affection." Here you can read the abcnews.com article.
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