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Under the tenets of ancient English common law, when wives were legally considered the property of their husbands, a jilted husband could sue any man who deliberately broke up his marriage and stole his wife.

Even as centuries have passed, and society has generally done away with the notion of wives as property, South Dakota has kept a version of that civil law on the books.

The state is one of only seven states to retain the civil action known as "alienation of affection.”

One element of the tort was argued before the South Dakota Supreme Court in October, though that case is unlikely to result in removal of the law in the state.

Meanwhile, a long-term controversy continues to rage in the South Dakota legal and legislative communities over whether the law is an appropriate way to resolve disputes over third-party involvement in breaking up a marriage and if financial damages should be rewarded as a result.

Cases typically surround marriages between well-heeled individuals who are worth suing when an affair occurs and a marriage ends.

A man was awarded $950,000 in a 2002 case in which a South Dakota jury ruled that an orthopedic surgeon from Las Vegas had enticed the man’s wife into an affair and had broken up their marriage. The judgment was later reduced to $400,000.

A small number of alienation cases remain active in the state. The tort language was expanded to be gender-neutral by the state Legislature in 2002 by allowing women to sue another woman for a break-up.

Opponents of the alienation tort argue that it treats people as a commodity, puts a price tag on an emotion, and leads to humiliating public revelations of infidelity that can harm the adults and children involved far beyond the impact of a typical divorce proceeding.

Roger Baron, a professor emeritus in the University of South Dakota Law School, said the alienation tort is unnecessary because divorce laws already enable fault to be determined and financial remedies to be assessed.

“It’s kind of a mess, and it continues to be a mess,” said Baron, author of “Cases and Materials on Family Law for the South Dakota Lawyer.” “Just because something bad has happened to someone in life doesn’t mean you have a cause to sue for it. It’s not saying we’re not sympathetic to you, but it’s not something you should be able to file a lawsuit over.”

That view is countered by experts who argue that marriage is a legal contract like any other agreement that can be broken and lead to damages when someone interferes. Some experts say alienation lawsuits are comparable to any malpractice or civil injury suit in which the actions of a person cause pain, suffering and financial loss to another.

Sioux Falls attorney Robert Christenson says alienation cases can be handled with dignity and serve as a way for a spouse whose marriage is broken up to be compensated financially for loss of love, companionship and an expectation of earnings.

“When you get in a car accident driving home and you have pain and suffering and emotionally you can’t deal with the pain, that’s no different than this,” he said. “In our system we compensate for loss with money. We’re not compensating for a person, we’re compensating for a relationship, a feeling of love and affection that is taken.”

Tough to prove

Alienation of affection is part of a group of English common law civil remedies known as “heart balm” laws, which include suing over violating a promise to marry or for “criminal conversation” in which a man could sue any other man who had sex with his wife.

“The rationale is that your heart is broken, and there’s a balm you can put on that to soothe it and the money is the balm,” Baron said.

Most of those torts have been stricken from state and federal laws, but alienation has been retained in South Dakota, Hawaii, Illinois, Mississippi, New Mexico, North Carolina and Utah.

The South Dakota alienation law is contained within Title 20, a section known as Personal Rights and Obligations. The law, 20-9-7, includes language forbidding “abduction or enticement” of a husband from his wife or a wife from her husband. The language specific to alienation forbids the “seduction of a wife, daughter or orphan sister,” and the new language added in 2002 which now forbids “the seduction of a husband, son or orphan brother.”

The text regarding children, Baron said, applies to rare instances where one parent may seek remedies from the other parent who turns a child against them or physically removes them from the relationship.

The three main elements that must be proven in an alienation case are that the marriage in question contained a degree of love or affection prior to the outside affair; that the affair alienated or destroyed that love or affection; and that the defendant’s malicious conduct contributed to or caused the loss of affection or love.

Jonathan Van Patten, a professor in the USD Law School who represented clients in alienation cases when he was in private practice, said the law essentially requires a plaintiff to show that someone who had an affair with a married person exploited a situation and “intentionally set out to” to break up or disrupt a happy marriage.

“It’s not like if someone who’s married has an affair you can get sued, because the requirements are much higher than that,” Van Patten said. “You’ve really got to have a smoking gun.”

Christenson said it’s possible that someone could be sued for alienation of affection even if they never had sex with the married person but instead somehow turned one spouse emotionally away from the other.

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Supreme Court cases

The South Dakota Supreme Court has been the final stop for several alienation of affection cases.

One element of alienation of affection was argued before the state Supreme Court in October. In the 2017 case of Cedar versus Johnson, a man in Frederick argued that his wife was stolen from him by the owner of the bar where she worked, ultimately breaking up his marriage and leading to divorce. A trial judge dismissed the case.

The judge ruled that by not placing a firm financial value on his loss, the plaintiff did not make a case for damages, and he threw out the case. The Supreme Court justices were asked in an appeal by the plaintiff’s attorney to rule on whether the plaintiff or his attorney had a legal obligation to set a value on the woman’s affection, rather than simply allowing the jury to decide the financial value of the affection or the marriage. A ruling is expected in the coming months.

In a high-profile case in Rapid City in 2012, the Pennington County state’s attorney at the time, Glenn Brenner, was sued by a man who claimed that Brenner engaged in a sexual affair with the man’s wife and had alienated her affection. The case went to the Supreme Court before being sent back to a lower court for trial.

During the legal proceedings, media coverage revealed highly personal accounts of Brenner’s relationship with the woman as well as details of her former marriage to the plaintiff. Court documents and media accounts highlighted conversations the woman and her former husband had with a marriage counselor as part of a debate over whether the marriage was void of affection prior to her relationship with Brenner.

Reached in Texas, where he is now in private practice, Brenner did not want to comment on the case except to note that the trial judge threw out the alienation claim and ruled in Brenner’s favor. He also noted that he is still married to the woman involved in the case.

On the books to stay?

Former state Sen. Stan Adelstein, of Rapid City, tried twice during his long legislative career to strike the alienation language from South Dakota law.

“It’s a ridiculous law; the concept of putting a value on a woman,” Adelstein, 87, said at the office of his engineering firm in Rapid City. “The concept that you’re going to get a certain payment for this woman to decide who she loves, and then decide what she’s worth?”

Baron said it appears as though the both the judiciary and the legislative branches of South Dakota government do not have the fortitude to abolish the alienation tort because on a base level it enables punishment for adultery.

“Both of them want it to be gone but neither of them is willing to bite the bullet and do it,” he said.

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