By Mickey from Casual Swinger for ASN Lifestyle Magazine
“I don’t see nothin’ wrong with a little bump n’ grind…” – R-Kelly
According to his 1994 hit, R-Kelly doesn’t see an issue with getting close with your favorite partner, but in some parts of the United States, it could set you back millions of dollars. Imagine, just for a minute: You and your partner are at a club you’ve been to dozens of times, sometimes great, sometimes just hanging out together… but always fun. That new couple walks through the door, and everyone takes notice. They’re two parts hotness and one-part new blood… everyone’s favorite! A night of drinks, dancing, and a hot trip to the playroom later, and you’ve got the makings of some seriously sexy memories. Problem is, that’s not all... a few months later, you get a letter from an attorney demanding you attend a deposition for something called “criminal conversation.” Huh?!
The North Carolina Cases
While that might sound like a bad joke, for people like North Carolina resident Greg Jernigan it’s a staggering reality. On August 19, 2019, a Pitt County North Carolina Superior Court Judge determined that he had committed acts of both Alienation of Affection and Criminal Conversation and, as such, required him to pay Robert Howard $750,000 for his home-wrecking transgressions. That is not a misprint. It’s not even the worst example, which came in 2011 when a North Carolina woman was awarded THIRTY million dollars from her ex-husband’s lover in a similar case. As recently as 2018, Keith King of North Carolina sued Texas resident Francisco Huizar to the tune of 8.8 million dollars. He won, and so have dozens of others under these so-called “homewrecker” laws.
Outdated & Misogynistic Property Laws
In modern America, how does this happen? Dating back to 12th Century England, men owned and ruled over everything. Slaves were property, as were women. Once a man took a wife, she became his property no differently than a cow or goat in the fields from which they made a living. In the event that his wife was unfaithful, the man with whom she cavorted was deemed to owe him compensation for his fault. In many states around the country, adultery is still technically a crime, in these cases punishable by a fine and cause for divorce action, should their spouse seek it. Fortunately for most people in the United States, many of these laws have been stricken from the books for their sheer lunacy and supposition that anyone can be treated as property. “At the end of the 19th century in the United States, there was a movement, largely in legislatures which gave women who were married more rights. A number of states got rid of these heart balm torts, given that the original justification for it no longer matched the perception of what should happen in a marriage. The states that clung to these torts largely shifted rationale from the husband’s rights to property (& the wife) to an idea of marital sanctimony and support for an existing marriage. Lots of those states even then got rid of those torts once we hit the 1970’s and moved to a no-fault divorce,” said Dr. Maxine Eichner, University of North Carolina Distinguished Professor of Law.
A tort is simply a law born of legal decisions that allows individuals to sue each other directly for wrongs perpetrated between them. Eichner added, “Usually what we’re talking about are statutes that are passed by a state legislature or the federal congress. Heart balm torts aren’t like that. Heart balm torts are common law torts, so they are torts that have been developed in courts over time. It didn’t come from legislature.” In six states, however, (Hawaii, Utah, South Dakota, New Mexico, Mississippi, and North Carolina), these archaic laws still exist, allowing jaded spouses to sue the paramour of their husbands or wives under what is termed “heart balm” torts. Although they’re expensive to litigate and difficult to collect on, they are frequently used as leverage in divorce. So much so, in fact, that more than 200 such cases are brought per year just in the state of North Carolina. Occasionally though, they’re seen through to the end and often result in large sums of money awarded to the winner.
Can This Apply to Me in the Lifestyle?
When asked about these laws applicability to Lifestyle situations, Eichner replied, “I believe that there is certainly the possibility that a court, a judge, or a jury could certainly agree that if you have sex with somebody that you know is married… that in itself is enough to prove wrongful intent.” Wrongful intent, or malice, is required as part of the claim for Alienation of Affection, but as you’ll see later… it’s assumed when sex is involved, further increasing the danger to Lifestyle couples. “Malice means some kind of either willful state of mind or at least a reckless state of mind,” Eichner continued.
While married couples in the Lifestyle may have difficulty proving Alienation of Affection against each other after agreeing to open their relationship, there are many types of Lifestyle relationships that involve other people in varying ways. It’s important to remember that these laws can be applied TO you, not simply BY you. Later, we’ll offer up a couple of examples of ways that these laws can have profoundly affect your world.
Alienation of Affection
Commonly referred to as a “Mother-in-law” tort, Alienation of Affection is a tort that allows a jilted spouse to bring suit against an offending party that has materially damaged their marriage. Interestingly, this law does NOT require that the parties had sexual intercourse in order to apply, meaning that any person could theoretically be sued under the following circumstances:
1. The marriage was born of love and affection
2. The marriage had demonstratable love and affection prior to the intervention of said 3rd party
3. The 3rd party acted out of malice to damage the union
According to the North Carolina Law of Torts (Page/Morris), “The plaintiff need not establish that the defendant intentionally destroyed the marriage, only that the defendant intentionally engaged in conduct that would probably affect the marital relationship.” Translated, Alienation of Affection doesn’t require divorce (or sex) in order to apply, only a reasonable supposition that damage occurred out of malicious intent. “Alienation of affection used to be filed by husbands against their in-laws. It doesn’t require sex, although most of the time, the way it’s used today, it does require sex, though,” said Eichner. Attorney Robin Laller of Sodoma Law (NC) suggests that these cases aren’t hard to win, but that “the hard part is proving their actions caused the problem” in the first place. Unfortunately, in cases where sexual intercourse WAS a factor, malice is ASSUMED by the court. Having sex with a married person in North Carolina is a malicious act against a marriage, and it’s termed “Criminal Conversation.”
North Carolina has made some small strides toward mitigating the damage potential of Alienation of Affection cases, however, where in recent years amendments brought forward by progressive representatives have:
1. Placed a three-year statute of limitations on Alienation of Affection claims.
2. Made any action taking place after a legal separation not subject to Alienation of Affection claims.
3. Only a natural person can be accused of Alienation of Affection, meaning no entity or corporation can be held liable for such claims.
Criminal Conversation is a legal way of saying, “had sex with a married individual.” Should a person have sex with a married person, it’s criminal conversation. It requires little proof and does NOT require that the other person was unfaithful to their spouse in order to apply. Per Misenheimer v. Burris (2006 North Carolina), it was established that:
1. A plaintiff is not required to prove love OR affection
2. A plaintiff is not required to prove any negative effect of the action
3. A plaintiff is only required to prove that sexual intercourse occurred
In North Carolina specifically, “proving” that sex occurred is actually astonishingly simple because of two troubling legal precedents; Estate of Trogdon (1991 North Carolina) and Coachman v. Gould (1996 North Carolina. Matter of estate of Trogdon established that sex can be presumed from circumstances or any element. Those elements were established in Coachman v. Gould, where one only needed to prove “opportunity,” and “inclination.” In other words, if a reasonable person could assume one had the opportunity, and wanted to, that party committed the act.
Criminal Conversation is considered a “strict liability” tort in North Carolina, which means that once the action is established, the offending party is presumed liable. That means, based on one or any of these considerations, the financial award can rise considerably:
1. Loss of companionship
2. Loss of services
3. Fear of STDs
4. Injury to family honor
5. Mental anguish
Consent: Your Best Defense
Some potential defenses include evidence of unhappiness, infidelity as evidence of unhappiness, marital discord, and finally connivance. Connivance occurs when one party misleads or provides false information in order to change the outcome of an agreement. In other words, they lied. Consent, however, remains the best and most effective defense. Catharine, a non-monogamous North Carolina based marriage counselor, offered, “It gives me even more reasons for seeking consent, other than just not being a bad person. Before consent was about human dignity and equality, making sure that nobody is oppressed. Those were my motivations. Consent with their spouse was even more about my deep commitment to honoring those people’s own commitment, making sure this wouldn’t become a hardship for them. Now we’re adding a THIRD motivation where I need to cover my ass legally? Who would’ve thought?”
Organizations like the National Coalition for Sexual Freedom (NCSF) exist to help spread the message of consent and fight for those very freedoms. When asked about the NCSF’s stance on heart-balm torts and other invasive regulatory practices, NCSF Chairperson Susan Wright said, “interpersonal relations should be left to those involved in the relationship, not become a matter for criminal courts to intercede. When it comes to cheating, that is an issue for the individuals who are directly involved to resolve, not a court of law.” Characteristically when we’re discussing consent, we view it in two possible frameworks, implied consent and expressed consent.
Implied consent is the idea that someone is agreeable to an action based on perceived behavior. It’s akin to walking into someone’s home, seeing them drinking a beer, and grabbing yourself a beer from the fridge because after all, they have a beer too. Most folks well versed in consent will tell you that there is NO such thing as implied consent. It’s simply not safe to assume someone is OK with something simply because it appears to you that they must be. In most states, as a matter of fact, silence is specifically identified as NOT being evidence of consent.
Expressed consent is a clear, concise, understood exchange that establishes agreement between two or more parties. There are two mechanisms for achieving consent (and defending possible, future unfortunate outcomes), which are:
1. Verbal Consent
a. This occurs when a discussion between the parties occurs and an agreement takes place.
b. Doesn’t require a witness not party to the action, but it certainly makes the defense easier.
2. Written Consent
a. The ironclad defense when consent is called into question.
b. Can be a written contract.
c. Could potentially be text messaging, so long as a “reasonable” person would assume consent based on the context/content of the messages.
An important note on consent in the State of North Carolina
Per North Carolina v Leon Way (1979 North Carolina), North Carolina remains the only state in the United States of America in which a woman cannot withdraw consent once penetrative sex has begun. While recent efforts such as North Carolina SB 563 have attempted to close this “loophole” in the law, it died in committee in June 2019. That means that once consensual penetration occurs, it remains so until it ceases to be so. Should it stop for any reason, re-entry must again be consensual or it's a violation of consent, and a crime has been committed. “Sex is not a roller coaster ride. Everyone has the fundamental human right to opt out of sexual activity at any time they choose. In reality, this case law puts the control of sexual activity in the hands of the person who wants to continue having sex, instead of each person having the ability to be self-determined about when and how their own body is touched,” said Wright.
Hotwives, Singles, and Couples... Some Risk Examples
“Hotwifing” is raging in popularity in the Lifestyle today. Whether you identify as a hotwife or a cuck, a stag or a vixen, or are just a swingin’ single in the Lifestyle, these groups have what could conceivably be the highest risk for falling victim to a heart balm claim. For clarification, in both hotwife and vixen situations, the wives have sex extramaritally with the consent of their own husbands for either their own or mutual gratification.
A hypothetical example:
Hotwife “M” is chatting with a single guy, “A,” who had reached out to them to attempt to earn her attention. He was in great shape, well-spoken, and has several qualities that are sought after, including validations. During the negotiation for a meeting, his schedule strikes “M” as extremely restrictive, with daytime meetings being the only acceptable times due to his “single Dad” schedule. She asks “A” bluntly if he’s married. His response? “Technically.”
What’s the danger here? First, he admitted that he’s married. In many states, for the right (or wrong) opportunity to fornicate, some folks will throw caution to the wind and have a fling. If he’s got a problem in his marriage, that’s HIS problem, right? Not in North Carolina. “M,” should she have gone through with the meeting and had sexual intercourse with “A,” could potentially be on the wrong end of a Criminal Conversation claim from his “technical” wife, as she did not consent to the act. Should damage to his marriage occur as a result, Alienation of Affection may also apply even if she NEVER had sex with him. Her only defense here is NOT to go through with having sex with “A” and cease all communication with him.
Let’s look at another potential example:
Vixen “K” is LOVING the Lifestyle. She and her husband have had great experiences, but he enjoys her trysts with older men very much. Due to a slow social circuit where they live, she starts using Tinder to find and secure new dates to fuel their sexy fire. She doesn’t ASK if they’re married, because she doesn’t care. It’s all in fun, right?
“K” is also party to Criminal Conversation, as she’s not acquired consent NOR had she asked the other party if he’s married. He didn’t connive (lie) to hide his marital status, and she didn’t ask. Keeping in mind that sex is cause to assume malice in North Carolina, she may also be party to an Alienation of Affection claim in this case. Having not asked if he was married is NOT a viable defense, nor is ignorance of the law. Ignorance of FACT can be, particularly if those facts were misrepresented, but in this case, she’s on dubious ground given that she didn’t even try.
An example for couples, if a bit unlikely:
Couple “Y” and couple “Z” meet at a house party and hit it off. Couple “Y” has been at this for a few years and knows the ropes pretty well. It’s couple “Z’s” first time out, and while “Y” detects a little trepidation, everything seems to be going pretty great. They retire to a playroom together, where they start to fool around. There’s never a formal discussion of rules or boundaries; they just get straight to the business. “Z’s” wife states that she’s not comfortable with her husband having sex with someone else just yet... but things get heated, and that’s exactly what happens. She doesn’t make a scene and everyone parts amicably... at first. The fight on the ride home and in subsequent days escalates to blame and ridicule, and ultimately lawyers.
Guess who is on the hook? Couple “Y.” They heard her say she wasn’t ok with it, a clear denial of consent. She never changed her tune, only the circumstances said otherwise... and there is no such thing as implied consent. Her silence was not an agreement. When asked how she handles it personally, Catharine suggested, “I always seek out the consent of the spouse. I’m certainly not doing it because I’m worried about the law, I’m doing it because I’m thinking about their relationship. My motivation is not to cover my ass legally.” These are only three of the possibly dozens of permutations of claims that could affect Lifestyle couples in these affected states. It’s important to know they’re very real (albeit potential) outcomes from alternative relationships and certain changes to best practices in these states are critical to protecting yourself and your family from potential embarrassment, strife, and financial ruin.
The Long Arm of the Law
North Carolina, in particular, has a “long arm” statute that applies to these torts. It allows North Carolina courts to reach defendants who do not reside within the state. Per sodomalaw.com, “Using the long arm statute, NC Courts can punish out of state parties who have caused injuries to North Carolina residents. In Alienation of Affection cases, North Carolina Courts have determined that an out of state person can be liable for Alienation of Affection if intimate acts between the married spouse and the third party occurred in North Carolina. Our Courts have also determined that out of state persons can be held liable in North Carolina if the out of state party places telephone calls or send emails to a North Carolina spouse. That means you don’t necessarily have to be a resident of North Carolina to be sued for Alienation of Affection. You could face liability simply by making calls and sending emails to a married person who lives in North Carolina.”
This statute applies whenever you’re engaging ANY resident of North Carolina in a Lifestyle activity, regardless of your physical location at the time. That’d hold true for Naughty in Nawlin’s, Bliss Cruises, Desire, and Hedonism Resorts as well.
Protecting Yourself and Your Family
The possibility of being sued in open court for Lifestyle activities is understandably terrifying. The potential ramifications of living a sexy Lifestyle shed light on the overwhelmingly critical element of consent, particularly in the states where these heart balm torts still apply. A few simple rules, when followed, can greatly reduce your chances of running into issues:
1. Always get CLEAR expressed consent from BOTH parties when engaging with a married person
2. Pay attention for indications that consent has been revoked, and re-establish consent
3. If consent is verbal, take note of anyone nearby that can confirm if necessary
4. If consent is digital, keep a screenshot of the exchange, or while perhaps unlikely... get it in writing.
5. Don’t play alone with a married person without a clear, expressed consent from their spouse.
6. Be honest and expect the same of your partners.
7. Ask where your partners are from. If they’re from a state like North Carolina, these laws apply.
Wright expanded on this further, saying, “If you live in North Carolina, it would be good practice to create a written agreement that lays out the terms of your relationship agreement. Kinky people regularly create these kinds of informal “contracts” with their partners to ensure that everyone is literally on the same page with what they agree to.” Excellent communication is a ground-level principle of the Lifestyle, and the information here does nothing to change that fact. It further illustrates how important it is to communicate with our spouses, play partners, and others to ensure that challenges don’t turn into watershed events that destroy lives, families, and financial futures. Catharine added, “One of my frustrations with consent is that somehow women don’t feel like they have to ask for it. That consent is somehow gender-specific, and that men are the only ones who need to seek it. This changes everything in that regard.”
It Matters... Seriously
While no party interviewed for this article had ever so much as heard of an instance of its application against a party in a Lifestyle context, it’s impossible to ignore the massive awards in North Carolina and South Dakota. They’re at least indications that these torts have been identified as leverage in divorces, and at worst, a mechanism for revenge in the most contentious of cases. They’re financially devastating, even when negotiated down to the state average for these claims, between 50 and 90,000 dollars.
As recently as last week, CBS ran a video special on non-monogamy, re-stating the oft-quoted statistic that suggests that 20% of American couples have participated in some sort of consensual non-monogamy. Almost daily we’re seeing largely positive mainstream news coverage for differing types of relationships outside societal norms. It’s a groundswell of momentum that could easily be turned by the wrong set of circumstances. “This feels like a shackle to that momentum. It’s another way of holding back an opportunity to live in your most fully expressed version of yourself if you have this worry of financial ruin from this antiquated law,” said Catharine.
In the Lifestyle, we freely engage in non-monogamy in a country with regions that specifically punish non-monogamous behaviors without the consent of a spouse, which makes understanding and respecting these aspects of law utterly critical. Take it seriously. Your family’s financial future could very well depend on it.
This article originally appeared in the November 2019 issue of ASN Lifestyle Magazine.