Constitutional Limits on Curtailing Cuckolding
Summary
Section titled “Summary”This note summarizes H. Hunter Bruton’s 2016 Duke Law Journal note on the constitutional status of alienation-of-affection and criminal-conversation torts. The article argues that these state-backed claims are vulnerable under modern privacy and intimate-association doctrine because they preserve property-like interests in a spouse and punish consensual sexual conduct through civil damages. Bruton concludes that criminal conversation is especially difficult to defend constitutionally, while alienation of affection may survive only in a narrowed, reworked form.
Key Findings
Section titled “Key Findings”- The note treats both torts as forms of state action because courts enforce intimate-morality rules through judgments and damages awards.
- Their historical logic is tied to older common-law ideas of wives as relational property, making the claims conceptually unstable under modern constitutional norms.
- Criminal conversation is the weaker tort because liability turns directly on consensual sex itself, making it harder to separate from constitutionally protected intimate conduct.
- Alienation of affection is somewhat more defensible because it can be reframed around intentional interference with an existing relationship rather than around sexual access alone.
- Bruton proposes a narrower tort of marital interference as a possible substitute that would target relational sabotage without preserving the most constitutionally suspect features of the older causes of action.
Clinical Relevance
Section titled “Clinical Relevance”This is not a clinical paper, but it matters as institutional context. It shows how jealousy, betrayal, and marital injury can be translated into legal categories that amplify ownership language, moral blame, and public punishment. For a relationship-focused knowledge base, that is useful background for distinguishing emotional harm from the legal frameworks that claim to remedy it.
Interpretation
Section titled “Interpretation”The most useful insight is that these torts do not just compensate pain; they encode a theory of marriage. Bruton shows that the older theory treats infidelity as an actionable deprivation of a spouse’s services, affection, or sexual exclusivity in a way that looks increasingly incompatible with constitutional protections for adult intimacy. That makes the article relevant not only to legal doctrine, but also to how institutions formalize humiliation, status loss, and possessive claims inside intimate life.
Related Topics
Section titled “Related Topics”- Inclusive Fitness Benefits and Socially Paired Males Under Cuckoldry
- Cuckolding and Troilism: definitions, relational and clinical contexts, emotional and sexual aspects, and neurobiological profiles
Sources
Section titled “Sources”- Bruton, H. H. (2016). The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of-Affection and Criminal-Conversation Torts. Duke Law Journal, 65, 755-799.