By: LINDSEY O’NEILL, ESQ.
The reports are all over the media of how Tiger Woods apparently carried on an affair with his mistress, Jamiee Grubbs, for almost three years! Some reports (mostly tabloids at this stage) quote Jamiee as stating that Tiger would visit her every few months and they’d “enjoy each other’s company.” Aside from the issue of what can be in a husband’s (or wife’s) mind when cheating… what is the deal with these women who go along with these full-blown affairs with men they know are married?
I’ve written previously about the idea of whether or not you should be able to sue the person who has an affair with your spouse or partner… and your comments are greatly appreciated and insightful. In that post, I intentionally focused on the situation of carrying on an all-out affair with full knowledge that the other person was married. In the business world, one can be held liable for tortiously interfering with a business relationship. For instance, if a person convinces another to break his/her business promises or contracts, or prevents a business person from living up to the same, the meddler can be held liable to the injured party who did not receive the benefits of the business relationship. Should there be a similar legal concept for marital relationships? Isn’t that what these cheating partners do?…. convince a husband to break his marriage promises, interfere with the husband’s marital relationship, preventing the wife from receiving all the benefits of the marriage relationship to which she is otherwise entitled?
If liability was imposed for interfering with a marriage relationship, would it deter people from having affairs? Does it matter if, in the instant example, Tiger pursued the other woman… or if the other woman seduced Tiger? Does the length of the affair play a role in calculating “culpability”? What about mitigating circumstances? For example, would it matter if Tiger and his wife had been having marital problems? If mitigating circumstances would be a factor, what kind of circumstances would have any weight? These are probably the kinds of issues people already think about when dealing with an affair from the emotional, psychological, and perhaps even financial side of things.
The reality today, however, is that its not illegal to have an affair. Nor is it necessarily something for which you can be sued. However, this was not always the law. In fact, at one time almost all states recognized the ability for a victimized spouse to sue the interfering lover for “alienation of affection” or “criminal conversation.” Today, however, with no-fault divorce and modern views on marriage and infidelity, state laws holding the affair-partner liable to the jilted spouse have fallen by the wayside for the most part (though apparently one can still sue in some states).
To the extent affairs are on the rise and marriages (and families) are suffering as a result, do you think the law might change back to favoring these kinds of actions? Does the marriage relationship deserve more “legal protection” against would-be interferers? If so, what would any “model legislation” look like? What consequences would an affair-partner be faced with if found liable? What would the betrayed spouse have to prove to successfully hold his/her spouse’s lover liable for damages? Here are some thoughts on what elements of the crime might look like to get you started thinking about the issue: (1) that the marriage was valid and true affection did in fact exist in the marriage; (2) that such affection had in fact been destroyed by the affair; and (3) that the affair partner knew of the marriage and, by virtue of continuing the affair caused or contributed to the impairment of the marital relationship? What would constitute an “illegal” affair? Would actions be limited to only physical affairs (sexual intercourse or “sexual relations”) or would emotional affairs be actionable as well?
On the other hand, what are the arguments that its not appropriate to hold an affair-partner liable for damages to the betrayed spouse? Would allowing these types of claims encourage revenge? Should the law really attempt to regulate the ins and outs of romantic relationships? Perhpas relationships between spouses, and for that matter relationships between lovers, are too complex to be deconstructed into legal elements. Should the sexual activities of consenting adults remain private – free from being publicized in a court room? Also…. if these types of lawsuits were allowed, and affair-partners were held financially liable to the injured spouse… and then the spouses get back together again?
Interesting arguments on both sides. After reading so many of your comments, it is clear to me that a betrayed spouse certainly is left without a legal remedy…. without a “day in court” …. against a man or woman who intentionally interferes with his or her marriage. Tiger’s wife can only renegotiate her prenuptual agreement… she has no direct remedy against the woman who intentionally, and seriously, caused her injury.
Interesting topic! Marriage is a legal contract – making it different than other personal relationships. Therefore, it would seem to follow that intentional interference with a marriage contract should have legal consequences. I think defining “interfere” is an issue – if Tiger pursued another woman, for example, did the other woman really interfere in Tiger’s marriage? Consequences is the other important issue. Deciding pain and suffering or emotional distress damages for interference with a marriage would be difficult and proving damages could bring a lot of information into the courtroom that is better left at home.
Reply
Gina Reply:
January 29th, 2010 at 7:10 pm
This happened to me also with a woman named “JEN…” If they know that the man is married they should RUN…Not pursue the scumbag, to make them a scumbag as well! Life is too short to be messing with another woman’s husband! They need to find their own man, and the so-called men, they need to keep it in their pants and grow up…They took VOWS…For better or worse! They should have laws in every state that protect marriages, whether man or woman…cause women cheat too! People should NOT get marrried if they want variety…think of the other person and think this. You WILL reap what you SOW…GINA
Reply
Didn’t a woman in North or South Carolina succesfully sue her ex-husband and his mistress for alienation of affection? She was awarded millions from the mistress.
Reply
Interesting Fact: I believe in NY it is actually a felony to sue someone for criminal conversion these days!
Reply
In India, under Hindu law, a marriage is not a contractual relation but a sacrosant relation. Therefore, having an extra marital affair is considered a taboo, social and emotional. However, the way Indian society is shaping up, a confused state of affairs between religious and age old traditions and enforced modernity, it is a regular feature. Ironically, polygamy was actually practiced in India by kings, although same was frowned upon if done by middle class. As far as law is concerned, bigamy is a punishable offence. Even having an affair is a ground for a valid divorce.
Reply
Frequently the “other” party to the affair does not even know they are in an affair with a married person until they have been in the relationship for some extended time. It is my position that the Married partner that is in the affair Does know that he/she is married and that person should be held to a higher level of accountability. That person is spending community Time, Emotions, Property, that could have been invested in the marriage. I know that at certain ages the sexual energy is greater and opportunities to present themselves but humans need to learn to be strong and deny those temptations. We can Say No. If we are not strong enough to say No then one can practice Avoidance, and if it is a work related issue then there is always the possibility of filing with the appropriate department a sexual harassment claim. If all else fails I suggest telling your partner that you have been receiving unsolicited, & undesired advances, and the steps you have taken to attempt to get them stopped. That puts the partner on notice in the event the instigator should try another route to interfere with the marriage and includes your partner in the problem solving process which should be constructive rather than destructive.
Reply
I do want to add to my prior comment that I do believe that the Media calls too much attention and spends Way too much time on celebrity infidelity, Once or Twice mentioned is Enough Already! I also do not believe it should affect Tiger Woods golf career or his endorsements unless they are of a Spiritual type. I believe that a Spiritual Adviser, Priest, Pastor, etc. should be held to he highest level of Media attention and recrimination for any breach of their covenant.
By the way I am a 71 year old woman that has given this matter considerable thought over the years.
Reply
I believe in NY it is actually a felony to sue someone for criminal conversion these days!
Reply
Yes, plainly a spouse should be able to sue the “other” woman (or man) because:
1) As another poster noted, a marriage is a legal contract and should be taken as seriously as any other contract, and be equally subject to tortuous interference laws (etc.);
2) Affairs are potentially more costly and damaging to the “innocent” spouse than even noted in this article: as if emotional, financial, and social damages are not bad enough, there is also the real potential of physical damage, namely std’s, which are truly lifelong damages. Think not only of the pain of being cheated on, but also the pain of being the recipient of an incurable disease such as herpes, or HIV. This does happen, although for obvious reasons you don’t hear much about it – who would want to advertise such damages? People who take marriage vows should be able to enjoy a more than reasonable belief that they won’t be easily subject to such damage and pain.
3) Laws against interferers would reinforce the seriousness of marriage. In the US the instances of being forced into marriage via a shotgun wedding are rare in the extreme – the vast majority of individuals marry as a knowing and voluntary act, and therefore the act should be taken with utmost seriousness by the parties making the marriage vows, as well as given great respect by those outside the vows. After all, if you trespass and damage land that is not yours, and you are taken to court, the likely outcome is that you will pay for the damage in court. Why should the same not apply to those who trespass and damage a marriage?
Reply
I suggest you get a life.
Reply
What if a employee of a national franchise such as [######], uses her position to prey on the clients’ low self esteem to benefit personally?
What if the persue the clients and flirt with them, call them personally, share their personal life with the clients and then eventually seduce them?
What if the company knows about the affair? What if the company pushes them together? Making the client exclusive to the employee? Where they put them in private rooms?
Shouldn’t the company be held responsible for condoning the affair between clients and employees? Shouldn’t the employee at least lose their job? Isnt their a confidentiality clause that was breeched?
I understand it takes two to tango, but this was a professional employee of a high end establishment. They should have to adhere to a code of ethics with clients.
[Companies] should be held legally rsponsible for the emotional, physical, damage thier employee caused to this 20+ year marriage.
Reply