North Carolina is only one of a handful of states that recognize the tort of criminal conversation. The actual name of this tort is somewhat of a misnomer as criminal conversation is a civil tort rather than a crime. It usually comes about when two people are married and one of the spouses has sexual intercourse with a third person outside of the marriage. In this instance, the aggrieved spouse would sue the third party for damages they have experienced as a result of the third party’s actions.
In order to win a suit for criminal conversation, a plaintiff needs to prove two things:
- That an actual marriage existed between the plaintiff and his or her spouse, and
- That a third party engaged in sexual intercourse with the plaintiff’s spouse during the marriage.
Because it is often difficult to prove sexual intercourse actually occurred, circumstantial evidence can be used to prove that the spouse and a third party engaged in sexual intercourse. North Carolina courts have held that a plaintiff generally needs to show that the parties had both the opportunity and inclination to engage in the adulterous behavior. This means that the spouse and third party had the disposition to engage in relations outside of the marriage and had the physical opportunity to engage in intercourse. For example, evidence that a spouse and a third party spent two hours in a hotel room together without the other spouse’s knowledge could be used to show that the parties had the opportunity to have sexual intercourse with each other.
One of the defenses to a claim for criminal conversation is the statute of limitations. In North Carolina, a complaint alleging criminal conversation needs to be filed within three years of the adulterous activity. If the complaint is not filed within three years, a plaintiff loses his or her opportunity to seek damages from the third party. Another defense to this cause of action is call connivance. Connivance is when the spouse consents to the adultery.
If a plaintiff is successful in proving his or her criminal conversation claim, there are two different types of damages that may be available to them: compensatory and punitive. Compensatory damages are the damages that would “make the plaintiff whole” again. This involves putting a monetary value on the injury or damages suffered by the plaintiff as a result of the actions of the third party defendant. Thus, for example, a plaintiff may have therapy bills resulting from the affair. The plaintiff may also be prescribed medication to cope with the situation. Compensatory damages would be available to pay for these bills and whatever other pain and suffering the plaintiff experienced.
Depending on the circumstances of the case, punitive damages may also be available. Punitive damages are imposed in order to “punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.” North Carolina General Statutes § 1D-1. To be awarded punitive damages from a defendant, a plaintiff must prove that defendant’s actions involved fraud, malice, or willful and wanton conduct.
The lawyers at Arnold & Smith, PLLC are experienced in handling criminal conversation cases in Mecklenburg, Cabarrus, Gaston, Iredell, Lincoln, and Union counties. Our experienced Civil Litigation, Divorce attorneys and North Carolina Board Certified Specialists in Family Law are here to help with these and other Divorce related matters. Contact us today to schedule a consultation with a Charlotte divorce attorney.