317In 1935, Indiana became the first state to abolish these torts.318By 1981, thirty-two states had abolished the tort of alienation of affections and twenty-two states had abolished the tort of criminal conversation.319Today, only eight states recognize causes of action for alienation of affections or criminal conversation.320Opponents of the adultery torts have offered a number of reasons for their abolition. Many claim that these torts, grounded in property notions that spouses (particularly wives) were chattel, are out of date with society’s views of sexual morality and the status of women and represent antiquated notions of people as property.321Others point out that history indicates these torts are often misused for extortion and blackmail, as many individuals do not wish for allegations of adultery, even if untrue, to be a matter of public record.322Finally, many opponents of the adultery torts have noted the failure of these tort actions to achieve their intended purpose of protecting marriage.323Specifically, opponents claim that these torts negatively affect possible reconciliation efforts of the married couples involved, hurt children by bringing additional tension, 311Corbett, supranote 297, at n.80. 312Id.at 1005; Jones, supranote 298, at 67. 313Corbett, supranote 297, at 1005. 314See, e.g., Michele Crissman, Alienation of Affections: An Ancient Tort—But Still Alive in South Dakota, 48 S.D.L.REV. 518, 518–19 (2002); Jones, supranote 298, at 75. 315Corbett, supranote 297, at 1006. 316Crissman, supra note 314, at 521. 317Jones, supranote 298, at 69. 318Corbett, supranote 297, at 1007. 319Id.at 1009. 320These states are: Illinois, South Dakota, Hawaii, Mississippi, New Mexico, North Carolina, and Utah. See740 ILL.COMP.STAT.ANN. 5/1 (West 1993); S.D. CODIFIED LAWS§ 20–9–7 (2002); Hunt v. Chang, 594 P.2d 118, 123 (Haw. 1979); Kirk v. Koch, 607 So.2d 1220, 1222 (Miss. 1992); Birchfield v. Birchfield, 217 P. 616, 618–19 (N.M. 1923); Hutelmyer v. Cox, 514 S.E.2d 554, 560 (N.C. Ct. App. 1999); Heiner v. Simpson, 23 P.3d 1041, 1042 (Utah 2001); see also, Corbett, supranote 297, at n.77. Pennsylvania recognizes the tort of alienation of affections, but only where “where the defendant is a parent, brother or sister or a person formerly in loco parentis to the spouse of plaintiff.” 23 PA.STAT.ANN. § 1901(b) (West 2010). 321Crissman, supra note 314, at 529; Jones, supranote 298, at 75–77. 322Crissman, supra note 314, at 521, 530. 323Id.at 530; Jones, supranote 298, at 73–75.
Vol. 7:2] Jessica Feinberg 333 publicity, and embarrassment to the already strained familial situation,324and, as evidenced by the significant number of married individuals estimated to have sexual relations outside of their marriages,325have no deterrent effect.3262.Recent Efforts by Same-Sex Marriage Opponents to Protect the Monogamy Requirement of Traditional Marriage Some of the leading anti-same-sex marriage organizations are also leading the charge to maintain, reinstate, or expand upon severe criminal and civil penalties for adultery in order to protect traditional marriage. For example, with regard to criminal penalties for adultery, in 2010 the Family Research Council reiterated its argument that adultery should remain a crime in order to “protect the institution of marriage.”