Marital Torts

I’m late (as usual) to the Amazon affair, but I enjoyed Paul Krugman’s celebration of Jeff Bezos as “a hero of democracy, a profile in moral courage.” This is a guy who just cheated on his wife.

Compare Bezos to Intel ex-CEO Brian Krzanich, who was ousted after a consensual relationship with an employee. It reminds me of an old Robin Hanson post that asks why the law punishes rape (even “gentle silent rape”) far more than it punishes cuckoldry. Prof. Hanson was run through the wringer for this question, mostly because the ambiguity of “gentle silent rape” invites a lot of willful misinterpretation.

A relationship between a CEO and a subordinate may be the closest approximation I can think of to “gentle silent rape.” Gentle, because there is no physical force; silent, because it is kept secret; rape, because after #MeToo we no longer consider women to be capable of consent — particularly if there’s a power imbalance.

Many of the #MeToo accusations involved this sort of inappropriate-but-nonviolent affair, and the accused parties were invariably deposed. On the other hand, Jeff Bezos cuckolded one of his company’s largest shareholders (Washington is a community property state, so what’s his is hers) and faces no job risk at all.

Prof. Hanson is correct in stating that *criminal* law, and society in general, allow adultery to go unpunished, but the same is not true of civil law. There are countless media articles enumerating all of Harvey Weinstein’s alleged victims, and they all neglect the biggest victim of all — his wife. While most of Weinstein’s accusers sold their silence for less than a million (or a movie salary worth less than such), the woman formerly known as Mrs. Weinstein will walk away with $15-20 million and custody of the kids.

Wall Street now has something known as the “Weinstein clause”, where M&A targets have to disclose any allegations of inappropriate behavior — If misconduct is discovered later, it could hurt shareholder value. It’s dumb because the definition of “misconduct” changes every year.

Cuckoldry used to be considered misconduct. Until last century, most states recognized the torts of alienation of affection and criminal conversation. In theory, a wife has some property interest in her husband’s fidelity and vice versa. Therefore a mistress that steals the husband’s affection is violating the wife’s property rights. In 1998, Bill Clinton’s accusers were trailer trash and gold diggers, and Hillary the victim. Today, those same women are survivors, and Hillary the evil enabler.

In theory, Mackenzie Bezos could file a claim against Lauren Sanchez for being a homewrecker, and Sanchez’s husband could sue Jeff Bezos for diddling his wife. More likely, we’ll realize that Lauren Sanchez is the real victim here — poor thing was coerced into the affair, by the prospect of billions and billions of dollars.


See Also:
H. Hunter Bruton. The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of-Affection and Criminal-Conversation Torts. Duke Law Journal, 2016.

2 thoughts on “Marital Torts

  1. Your example of gentle silent rape is worth a chuckle with respect to the woman’s inability in the Me too environment to consent in a power relationship, but Hanson’s example was a woman who was drugged with no physical harm and no memory.

    1. Hmmm, reading his post again, I think the intention was to minimize physical trauma, but can see how that example might be taken the wrong way…

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