This story originally published online at The Assembly.
On Sunday, former Apex Town Councilmember Scott Lassiter filed a lawsuit accusing House Speaker Tim Moore of carrying on a years-long affair with his wife, Jamie Lassiter, the director of the North Carolina Conference of Clerks of Superior Court.
The lawsuit is full of juicy allegations, from the salacious—Moore “convinced Mrs. Lassiter to engage in degrading sexual acts with him, including group sexual activity”—to potential abuses of power.
For example, Scott Lassiter says his wife wouldn’t end the affair “for fear of retaliation,” that Moore dangled political favors to smooth things over after being confronted about the relationship, that Moore had sex “with others over whom he had power or influence,” and that Moore conspired with an unknown person (pictured below) to place spy cameras on the Lassiters’ property.
Lots to unpack there. For now, though, let’s focus on the anachronisms under which Moore and about 200 other North Carolinians will likely be sued this year: alienation of affection and criminal conversation.
The former refers to a defendant’s “wrongful and malicious conduct”—i.e., initiating an affair—that disrupted a loving marital relationship. The latter has only two requirements: a couple was married, and one of them had sex with the defendant; the fact that the affair was consensual is irrelevant.
Both so-called heartbalm torts are drawn from the common-law “belief that a husband owned his wife and was entitled to compensation for a lost property interest in her sexual fidelity,” as H. Hunter Bruton explained in the Duke Law Journal in 2016, not laws passed by the General Assembly. And until 1897 and 1925, North Carolina women couldn’t bring alienation-of-affection and criminal conversation lawsuits, respectively; only aggrieved husbands could.
Almost every state allowed heartbalm torts 200 years ago. But since the 1930s, they’ve all but vanished. Mississippi, Hawaii, South Dakota, and Utah are the only other states that permit alienation-of-affection claims, while Hawaii, Kansas, and Maine are the only others that allow criminal conversation cases.
The NC Court of Appeals declared them unconstitutional in 1984, but the state Supreme Court overruled that decision months later. Verdicts resulting in windfalls for the cuckolded followed: $1 million in 1999, $1.4 million in 2004, $5.9 million in 2010, $30 million in 2014.
The torts’ fans point out that while they were rooted in misogyny, women now bring about half of these lawsuits. They also argue that the lawsuits “deter conduct that causes personal injury; they protect promises made during the marriage; and they help preserve the institution of marriage, which provides innumerable benefits to our society,” Winston-Salem attorney G. Edgar Parker wrote in the North Carolina State Bar Journal in 2019.
There’s little evidence that’s true. North Carolina has the country’s 12th-highest divorce rate. Mississippi and Utah rank ninth and 11th, respectively. Few non-lawyers realize they can be sued for sleeping with a married person. More people are probably aware that judges can factor in adultery when calculating alimony, and that doesn’t seem to stop people from cheating.
Deterrence is beside the point, Court of Appeals Judge Darren Jackson argued last year.
“Disincentivizing people from choosing to engage in these relationships by treating a person as the property of another person is wrong and has no place in our world or society today,” he wrote. “… The law must not validate the idea that sex is something a person can owe another person—and by extension, something that a third person could possibly steal.”
Jackson, a former Democratic lawmaker, was the lone dissenter in Beavers v. McMican, which focused on whether a man had provided enough evidence that the defendant was his former spouse’s lover for his lawsuit to go to trial. Jackson thought he hadn’t, but most of his 28-page dissent—nearly twice as long as the court’s opinion—ripped the “antiquated” torts that he believed “lack any adequate modern justification for existence.”
Of course, unlike most heartbalm-tort defendants, Tim Moore presumably knew these lawsuits were possible before engaging in the alleged affair with Jamie Lassiter. Besides being a lawyer, he’s been in the General Assembly for 20 years, the last eight as speaker.
During that time, the NC Association of Women Attorneys, the Bar Association’s Family Law Section, and other advocates lobbied the legislature to abolish alienation-of-affection and criminal conversation litigation. Moore’s colleagues have repeatedly introduced legislation to do just that—most recently on April 17—to no avail. The bills have always died in committee.
If true, Scott Lassiter’s allegations that Moore has used his office to coerce sex are serious. But so is this: Lassiter’s effort to publicly humiliate his wife—an act of petty vengeance—is fully sanctioned by North Carolina’s courts. On top of that, Lassiter believes he should be paid because his wife had sex with another man—and that belief, too, is state-sanctioned.
“Our Supreme Court deserves another opportunity to correct this wrong,” Jackson wrote last year. Under state law, his dissent in Beavers forced the Supreme Court to hear the case. Oral arguments are scheduled for September 13.
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