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Interesting Development On NC’s Laws Designed To Protect Marriages

A North Carolina man has been given the green light to sue a Winston-Salem doctor for breaking up his marriage. Mark Malecek sued Dr. Derek Williams, a pediatric cardiologist at Wake Forest Baptist Health, after learning that Williams was involved in a sexual relationship with his wife, Amber. Amber Malecek and Williams worked together at the hospital.

Malecek based his lawsuit on two little known North Carolina civil laws: Criminal Conversation (adultery) and Alienation of Affection (a wrongful malicious action by a third party that results in the loss of love and affection in a marriage). See below for more specifics on these laws. North Carolina is one of only a handful of states with laws that allow these civil lawsuits.

A Forsyth County judge had dismissed the lawsuit at the request of Dr. Williams, who argued in part that the law was “facially unconstitutional” due to the Lawrence v. Texas U.S. Supreme Court ruling that legalized sodomy based on a right to privacy, as it relates to private sexual activity between consenting adults.

However this week, the North Carolina Court of Appeals ruled the laws were constitutional, saying: “Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments.” Although the Court said these laws are often used as heavy-handed negotiating tools to exact vengeance, the three-judge panel said, “Whether this Court believes these torts are good or bad policy is irrelevant; we cannot hold a law facially unconstitutional because it is bad policy.” (NC Family Policy Council has written articles, including an issue brief, explaining why this is good policy.)

The Court ruled that the State “has a legitimate interest (indeed, a substantial interest) in protecting the institution of marriage, ensuring that married couples honor their vows, and deterring conduct that would cause injury to one of the spouses. […] We thus turn to the critical question presented here: is the State’s need to protect these interests sufficient to justify private tort actions that restrict one’s right to engage in intimate sexual conduct with other consenting adults?We hold that it is.”

The case has been sent back to the lower court for further proceedings.

Here are more details on the two civil actions involved in this case:

Alienation of Affection: This is a civil action that can be brought when a third party intrudes into a marriage and alienates the affections of a married person from their spouse, resulting in the break-up of the marriage. This is not an action against the wrongdoing spouse, but is an action against the third party. In order to succeed in such a claim, the plaintiff must establish:

(1) That [the husband and wife] were happily married, and that a genuine love and affection existed between them;

(2) That the love and affection so existing was alienated and destroyed; [and]

(3) That the wrongful and malicious acts of the defendant produced and brought about the loss and alienation of such love and affection.*

Criminal Conversation: This is a tort action against a third party for committing adultery with another person’s husband or wife. The plaintiff must prove the following:

(1) The husband or wife was married; and

(2) The third party had sexual intercourse with the husband or wife.*

*McCutchen v. McCutchen, 360 N.C. 280; 624 S.E.2d 620; 2006 N.C. LEXIS 2, citing, Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641, 641 (1966).

*Cannon v. Miller, 71 N.C. App. 460, 465 (1984).


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