In a recent article I did for “Eccentrics of the Regency,” I did a piece on Edward Hughes Ball Hughes. In the piece, I wrote: “Hughes’ older sister Catherine Ball was a socialite, journalist, and novelist who eventually styled herself the “Baroness de Calabrella” after acquiring property in Italy. She married an older man, Rev. Francis Lee, at the age of 16 in 1804, without her mother’s permission, and was separated from him in 1810 on charges of adultery; her lover, Captain George de Blaquiere, was successfully sued by Lee for criminal conversation.” When I read this, I wondered whether “criminal conversation” was anything like “alienation of affection.” So, I was determined to find out.
Criminal conversation, commonly known as crim. con., is a tort arising from adultery. A tort, in common law jurisdictions, is a civil wrong. Tort law deals with situations where a person’s behavior has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act, but it is an act or inaction that causes harm to another. The law allows anyone who is harmed to recover his loss. To prevail (win) in a tort law case the plaintiff (person suing) must show the actions or lack of action was the most likely cause of the harm.
It is similar to breach of promise, a former tort involving a broken engagement against the betrothed, and alienation of affections, a tort action brought by a deserted spouse against a third party.
Suits for criminal conversation reached their height in late 18th and early 19th-century England, where large sums, often between £10,000 and £20,000 could be demanded by the plaintiff, for “debauching” his wife. These suits were conducted at the Court of the King’s Bench in Westminster Hall, and were highly publicised by publishers such as Edmund Curll and in the newspapers of the day. Although neither the plaintiff, defendant, or the wife accused of the adultery were permitted to take the stand, evidence of the adulterous behaviour was presented by servants or observers. It was based upon compensation for the husband’s loss of property rights in his wife, the wife being regarded as his chattel. Historically a wife could not sue her husband for adultery, as he could not be her chattel if she was already his. The tort was abolished in England in 1857, and the Republic of Ireland in 1976. It still exists in parts of the United States, although the application has changed. At least 29 states have abolished the tort by statute and another 4 have abolished it by common law.
A number of very sensational cases were heard in the second half of the 18th century, including Grosvenor v. Cumberland in 1769, where Lord Grosvenor sued the King’s brother, the Duke of Cumberland for crim con with his wife, being awarded damages of £10,000; and Worsley v. Bisset in 1782, where Sir Richard Worsley lost his case against George Bisset, after it had been found that Sir Richard had colluded in his own dishonour, by showing his friend his wife Seymour Dorothy Fleming naked in a bath house. In 1796, the Earl of Westmeath was awarded £10000 against his wife’s lover, Augustus Bradshaw
The tort of criminal conversation seeks damages for the act of sexual intercourse outside marriage, between the spouse and a third party. Each act of adultery can give rise to a separate claim for criminal conversation.
The tort has seen particular use in North Carolina (my current home state). In the case of Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), the North Carolina Court of Appeals (the state’s intermediate appellate court), abolished the tort of criminal conversation, as well as the tort of alienation of affections, in the state. However, the North Carolina Supreme Court summarily vacated the Court of Appeals’s decision shortly thereafter, saying in a brief opinion that the Court of Appeals had improperly sought to overrule earlier decisions of the Supreme Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). In 2009, the General Assembly approved legislation which placed some limits on such lawsuits. The bill was signed into law by Governor Bev Perdue on August 3, 2009, and is codified under Chapter 52 of the North Carolina General Statutes.