Society & Culture
“My client may be a bad husband. He may be a cheater and a sinner. But he is NOT a criminal.” This less-than-ringing endorsement pretty much sums up the defense theory in the case of U.S. v. John Edwards. As of today the jury is still deliberating the fate of the perfectly-coiffed former Senator and one-time Presidential hopeful. Edwards is accused of violating several federal laws involving the use of campaign contributions (yawn), to cover up an affair with crazy-lady-baby-mama Rielle Hunter (now we’re talking), from saintly cancer-stricken wife Elizabeth Edwards (zing!). Rather than de-emphasize Edwards’ rather awful behavior, the defense argues that the $900,000-plus used to squirrel away Rielle in a posh love shack were gifts—not campaign contributions. (Go ahead, sleep with her! She's not psycho!)It’s a legit defense, given that the jury is forbidden to find Edwards guilty based solely on his character as a bad husband.1 But what keeps this case at the top of the tabloids isn’t the price tag, but the sordid tale of love, lies, and betrayal. Underscoring the drama is the specter of Elizabeth Edwards, a constant presence in the trial despite succumbing to breast cancer in 2010. Shocking testimony describing a confrontation with Edwards where she literally bared herself to him while accusing him of cheating dominated the media and set the tone for this trial.Given these facts, it’s tempting to speculate how Elizabeth—also an accomplished lawyer—might have handled this situation were she still alive. Before her death, she separated from Edwards but didn’t file for divorce. She did, however, threaten one of Edwards’ former aides with an “alienation of affection” lawsuit. Now, if you’ve never heard of this concept, you’re not alone; only a handful of states still recognize this common law tort.2 But if you’re in one of those states and you’re tempted to get involved with a married guy or gal, you’d better read on.An alienation of affection lawsuit allows a wronged spouse to sue a third party for breaking up the marriage. Although Elizabeth Edwards threatened this lawsuit against the former aide who covered for his boss, alienation of affection is usually aimed toward a direct interloper, typically a the “other” man or woman. Given that John and Elizabeth Edwards are both from North Carolina (they met as students at my alma mater, UNC), let’s take a look at how that state defines it. A claim for alienation of affection requires proving each of these elements:(1) The marriage entailed love between the spouses in some degree; (2) The spousal love was alienated and destroyed; and (3) Defendant’s malicious conduct contributed to or caused the loss of affection.So as you can see, you don’t have to prove that defendant had sex with your spouse, which is why alienation of affection lawsuits could be brought against any third party (in-laws? World of Warcraft guild members? The possibilities are endless). (Your husband might be cheating with THIS guy.)But it gets tricky when you have to prove both love and its loss. These elements expose the law’s antiquated roots, bringing to mind concepts of chivalry and ungentlemanly conduct in an age where sexting someone on your iPhone is a form of social discourse.Don’t be fooled by the old-school language, however—alienation of affection lawsuits occur regularly nowadays, and the result can mean big bucks for the spurned spouse. A hefty verdict was handed down in North Carolina in 2010 in the case of Dr. Lynn Arcara. She sued her former BFF, Susan Pecoraro, who slept with Mr. Arcara while in town to help the Arcaras prepare for the arrival of their newborn. The jury found in favor of the wife to the tune of a $5.8 million judgment against the mistress.3 As Dr. Arcara’s attorney argued, “She came down and helped my client paint her nursery and in the process she helped herself to my client's husband.” Money may not equal happiness, but I’m guessing six million bucks might help to heal a broken heart.So let’s say you’re in a position to bring an alienation of affection lawsuit, but you’re nervous about proving some of the elements… like the genuine love and affection part? Well, depending on the state you may have another option, the lawsuit of “criminal conversation.” This common law tort essentially requires you only prove (1) someone had sex (2) with your spouse while you were married. However, it can sometimes be harder in court to prove sex, than to prove love—but that’s a topic for another blog.Until then, I encourage you to follow the advice of Dr. Arcara’s lawyer: “If you want to have an affair, you need to choose someone who doesn't reside in North Carolina [or Hawaii, Illinois, Mississippi, New Mexico, South Dakota, or Utah] to have it with because you are going to open yourself up to a liability if you do so.”Couldn’t have said it better myself.*1. Generally speaking, Federal Rule of Evidence 404(a) prohibits use of character evidence to prove that the defendant acted in conformity with that character, to prove the charged misconduct.2. Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah.3. You may be wondering how the jury came up with this figure; it’s based on the money Dr. Arcara lost due to the divorce. Her husband was a retired Army officer, so most likely the figure is based on future earnings and pension. I wouldn’t be surprised if it also included punitive damages against the mistress.*Except for adding in a few more states, of course.