Criminal Conversation

Criminal conversation is a tort action against a person who has sex with your spouse without your consent. This is a claim that is recognized in a handful of states. An experienced family law attorney, such as those here in Greensboro, can help with the intricacies of such a unique cause of action. 

To describe a little more about a criminal conversation claim, here is some additional information. You have three years from the date of the sexual encounter to bring the action. This does not include any sexual encounters that have occurred after the date of separation. You are asking—usually a jury—to award you money damages. The amount a jury awards varies, as they can consider multiple factors – loss of companionship, loss of services, fear of sexually transmitted disease, injury to family honor, mental suffering, and humiliation. 

Getting down to the details, a criminal conversation claim requires proof of three elements to be successful. These include: (1) an actual legal marriage between the plaintiff and the allegedly adulterous spouse; (2) sexual intercourse between that adulterous spouse and the defendant during the legal marriage; and (3) the sexual intercourse must occur before the date of separation of the married spouses. 

For a hypothetical example with hypothetical names, Ethan Johnson and Beth Johnson of High Point are legally married. Several years into their marriage, Beth learns that Ethan has been sleeping with their next door neighbor, Tammy Phillips (hypothetical name). Beth can file a suit against Tammy for criminal conversation. All of the above mentioned elements are met: Ethan and Beth were legally married, Tammy and Ethan had sex while Ethan was still married to Beth, and Beth and Ethan had not separated at the time of the sexual intercourse between Ethan and Tammy.  

However, if you change the facts a little bit, you get a different outcome. Ethan and Beth decided to file for divorce and Ethan moved out into his own apartment. A few months later, Ethan began having a sexual relationship with Tammy. In this case, Beth would not be successful in a criminal conversation suit against Tammy. Although Ethan and Tammy’s sexual relationship took place while Ethan and Beth were still legally married, Ethan and Beth were already separated at this point. Any acts performed after separation cannot be the basis for a criminal conversation claim. Therefore, timing is a critical element in dealing with such causes of action.

One difficulty in pursuing a claim for criminal conversation is proving the second element – the sexual relationship. This is more commonly confirmed with detective evidence. However, in North Carolina, this can also be presumed from the circumstances. Two conditions must be proved in order to presume adultery: (1) the plaintiff must prove an adulterous disposition or inclination of the parties; and (2) the plaintiff must prove that there was an opportunity created to satisfy the parties’ mutual adulterous inclinations. Having hard evidence obtained by a detective of a sexual relationship between the two parties is easier and more definitive than trying to presume adultery. 

You may also be accused of criminal conversation and need a defense. There are many counterclaims and defenses. Book an appointment immediately. You may need us.


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