Alienation of affection law unconstitutional, Forsyth County judge rules

Gavel generic image

WINSTON-SALEM, N.C. — North Carolina’s law allowing people to sue their spouse’s lover and collect damages violates constitutional protections on free speech and free expression and serves no legitimate state interest, a Forsyth County judge ruled Wednesday in dismissing a lawsuit.

According to a Winston-Salem Journal report, it marks the first time that a Superior Court judge in North Carolina has directly challenged the constitutionality of the state’s alienation of affection and criminal conversation laws, a legal expert in family law at Wake Forest University said.

North Carolina is one of six states in the country that have alienation of affection laws, which allow people to sue their spouse’s lover if they can prove that the defendant caused the couple’s marriage to fall apart.

“Alienation of affection” refers to any action, including just talking, but almost always includes “criminal conversation,” the legal term for extramarital sex.

On Wednesday, Judge John O. Craig said in a written order that the state’s alienation of affection laws infringed on people’s rights under the First and 14th amendments of the U.S. Constitution. He rejected arguments that the state had a legitimate interest in protecting the sanctity of marriage and argued that people use these laws to blackmail their spouses.

“Here, no compelling state interest exists in protecting the marital relationship that can justify AA’s (alienation of affection) suppression of a right as fundamental as free speech,” Craig writes in his order. “Moreover, assuming that a compelling state interest might exist, AA’s practical effect is to chill by speech by not setting clear limits on what speech is actionable and what is protected.”

Supporters of the law have argued that state government has a right to regulate private sexual behavior of people who are having affairs with married people. They have said the laws are needed to protect the sanctity of marriage.

Craig, however, disagreed, noting that all but six states have abolished such laws.

“In fact, disgruntled ex-spouses utilize AA and CC (criminal conversation) as blackmail to obtain more money from an ex-spouse or an ex-spouse’s paramour,” he said. “They seldom, if ever, serve as a means of reconciliation of the broken marriage. Therefore, an adult individual’s right to engage in private consensual sexual intercourse involving another consenting adult or to engage in private consensual communication with another adult constitutes a fundamental liberty that is deeply-rooted in our Nation’s history.”

Craig made the ruling in a lawsuit that was filed on Feb. 12 in Forsyth Superior Court. In the lawsuit, Angela Robinson Rothrock of Kernersville alleged that Sherry Cooke of Winston-Salem began an affair with her husband, Timothy Gray Rothrock, that led to the couple’s separation after 27 years of marriage. Rothrock asked for more than $100,000 in compensatory and punitive damages based on alienation of affection and criminal conversation, according to court papers.

Jeffrey Hutchins, Angela Rothrock’s attorney, declined to comment Friday. He would not say whether he plans to appeal Craig’s decision.

John Vermitsky, Cooke’s attorney, said he was happy with Craig’s decision. He recently challenged the constitutionality of the law in another case that involved Melissa Oliver, the mistress of Andrew “Flip” Filipowski, Silk Road Equity investment firm. The N.C. Court of Appeals declined to deal with the law’s constitutionality because the lawsuit was still pending at the time. It was eventually settled for $107,500. Veronica Filipowski had sought $20 million.

“The significance of this is she (Cooke) doesn’t have to answer a lawsuit that violates her constitutional rights,” Vermitsky said. “The question of whether or not the (N.C.) Court of Appeals or (N.C.) Supreme Court will ever decide this issue is a question we may or may not answer. I’m very pleased that Judge Craig ruled the way he did, and it’s the right decision.”

Suzanne Reynolds, a professor of family law at Wake Forest University, said it appears that Craig is the first Superior Court judge in North Carolina to challenge the constitutionality of the law.

“It is a bold move by Judge Craig because the North Carolina Supreme Court has already spoken on the issue sand said that if the actions are to be abolished, it’s by the N.C. Supreme Court and not by a lower court.”

She said Craig’s decision will probably be appealed to the N.C. Court of Appeals, and if that court affirms Craig’s decision, the N.C. Supreme Court will more than likely take it, based on its previous ruling on the issue.

Most states in the United States have abolished the law because officials determined it was antiquated and bad policy. Before abolishing the law, states put limits on the amount of damages that plaintiffs could get, Reynolds said.

North Carolina has neither made moves to abolish the law or put limits on damages, she said. Reynolds said no evidence exists that proves that these laws either protect marriages or prevent people from cheating. The laws, known as “heart balm” actions, only bring more acrimony to separations and divorces, she said.

“Heart balm actions simply fly in the face of efforts to make the dissolution of a family as civil as possible,” Reynolds said.