Eugene Volokh encourages some discussion of my tort of adultery idea at the Volokh Conspiracy.
A few quick thoughts:
Prof. Lloyd Cohen, a family-law specialist at George Mason Law, points out the version I posted is more like a update of the tort of “criminal conversation” — which was rooted in the crime of adultery — rather than the “alienation of affections” tort which required the affections to be, well, alienated before a lawsuit could proceed. (It’s messy business figuring out why a spouse’s affections get alienated. An act of adultery is a far brighter line.)
Personally, I’m fine with the idea that a single person, who has millions of potential sexual choices, incurs legal risk if they invade someone else’s marriage. The alternative is giving the betrayed spouse only one legal option: hurting his or her own family through divorce — a classic cut-off-your-own-nose deal.
But we could choose to limit the liability to commercial enterprises that explicitly solicit adultery (rather than soliciting sex in general, which should limit Deroy Murdock’s concerns about legal overreaching).
Thanks to Prof. Katherine Spaht of LSU law for her help on this.