(dissenting). Although the facts of this case might also have formerly given rise to an alienation of affection and *810criminal conversation action, I would hold that the plaintiffs claim for intentional infliction of emotional distress is not expressly barred by sec. 768.01, which eliminated alienation of affection and criminal conversation actions, and is not barred by public policy. Accordingly, I would reverse the order of the circuit court and hold that the complaint states a claim for which relief may be granted.
HH
While sec. 768.01, Stats. 1987-88, specifically abolishes all causes of action for alienation of affections and criminal conversation, it does not expressly abolish the tort action of intentional infliction of emotional distress, an action recognized in this state when sec. 768.01 was enacted. Nor does sec. 768.01 have a catch-all clause saying torts similar to alienation of affections or criminal conversation are abolished. While sec. 768.08 provides that chapter 768 shall be liberally construed to effectuate the object thereof, it does not authorize this court to rewrite sec. 768.01 to add causes of action not enumerated therein.
When I compare the plaintiffs intentional infliction of emotional distress claim with alienation of affections and criminal conversation claims, I conclude that the plaintiffs claim in this case is so dissimilar to those claims that it is not barred by sec. 768.01.1
*811The gravamen of the tort action of alienation of affections was a spouse's loss of the love, society, companionship and comfort of the other spouse. The complaining party had to prove (1) wrongful conduct by the defendant; (2) loss of affection or consortium of the spouse; and (3) a causal connection between the wrongful conduct and the loss. Dobrient v. Ciskowski, 54 Wis. 2d 419, 422, 195 N.W.2d 449 (1972). The tort focused not on the sexual intimacy of the plaintiffs spouse with the defendant but on the defendant's interference with the marital relationship that changed the plaintiff's spouse's mental attitude toward the plaintiff.2
The tort action of criminal conversation, a civil tort action for adultery, focused on the marriage. The elements of a claim for criminal conversation were (1) an actual marriage between the spouses and (2) sexual intercourse during the marriage between the defendant and the plaintiffs spouse. Schneider v. Mistele, 39 Wis. 2d 137, 140, 158 N.W.2d 383 (1968).3
In contrast to these two abolished actions, intentional infliction of emotional distress is a tort action arising from interference with the person, for injury to *812the plaintiffs well-being.4 The four elements of intentional infliction of emotional distress are: (1) the defendant's purpose was to cause the plaintiff emotional distress, (2) the defendant's conduct was extreme and outrageous, (3) the defendant's conduct was the cause in fact of the plaintiffs injury, and (4) the plaintiff suffered an extreme disabling emotional response. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 695, 271 N.W.2d 368 (1978); McKissick v. Schroeder, 70 Wis. 2d 825, 832, 235 N.W.2d 686 (1975); Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963).5
Although a particular fact situation arising out of a marital relationship might support all three causes of action, the three causes of action are separate and distinct.
The elements of each action are different. Alienation of affections and criminal conversation actions required marriage as a predicate for the tort; both actions protected the husband-wife relationship. Intentional infliction of emotional distress neither requires nor is specifically designed to protect the marital relationship. Criminal conversation is the tort analogue to the crime of adultery; sexual conduct is an essential element of the tort. Sexual conduct is not a necessary element in an action for intentional infliction of emotional distress.
An action for alienation of affections focused on the effect of the defendant's conduct on the plaintiffs spouse. An action for criminal conversation focused on the defendant's sexual relationship with the plaintiffs spouse. An action for intentional infliction of emotional *813distress focuses on the defendant's conduct towards the plaintiff and the effect of the defendant's conduct on the plaintiff.6
The three tort actions protect different interests and compensate different injuries. In an alienation of affections or criminal conversation action the plaintiff seeks compensation for disruption of the marital relationship. In an action for intentional infliction of emotional distress, the plaintiff seeks compensation for injury to his or her own person; the severe emotional harm to the plaintiff is an essential element of the tort. The plaintiffs claim in this case alleges that the defendant caused emotional harm to the plaintiff. The plaintiff does not allege adultery or harm to his marital relationship. An alienation of affections or criminal conversation action does not require emotional harm to the plaintiff, although the fact-finder may consider emotional harm as a factor in assessing damages.
*814Because the plaintiffs claim for intentional infliction of emotional distress requires proof of different elements and redresses a different harm than an alienation of affections or a criminal conversation action, I conclude that the legislature did not abolish intentional infliction of emotional distress when it abolished alienation of affections and criminal conversation actions in sec. 768.01, Stats. 1989-90.7
hH I — I
I further conclude that the public policy considerations that impelled the legislature to abolish alienation of affections and criminal conversation actions do not require affirmance of the circuit court's dismissal of the complaint.
While the integrity of the marital relationship deserves legal protection, many states have abolished or restricted alienation of affections and criminal conversation claims by statute or judicial decision.8 These states have determined that the social harm engendered by *815these torts outweighs the goals they attempt to serve. Legislatures and commentators give several reasons for abolishing alienation of affections and criminal conversation actions.9 These reasons do not apply with the same force to the plaintiffs claim of intentional infliction of emotional distress, even though it is predicated on facts arising out of a marital relationship that might in the past have also been the basis of an alienation of affections or criminal conversation action.
First, the abolished actions were not generally credited with having a significant deterrent effect on tortious conduct or a significant effect on protecting or preserving the marital relationship. Presumably the marriage was not harmonious before the misconduct and was not apt to be improved by the threat of a civil action. In contrast, individuals considering intentionally inflicting emotional distress on another may be deterred by the prospect of a civil tort action.
Second, the abolished actions, often involving an accusation of sexual misconduct, had a great potential for abuse. The abolished actions allowed society's intrusion into the emotional, marital, and sexual aspects of individuals’ lives and may have unreasonably interfered with an individual's interest in personal privacy. The abolished actions could have been used for blackmail. The threat of reputation-damaging publicity could force *816a spouse to accept an unfavorable divorce settlement or to force the third party to pay money.
While actions for intentional infliction of emotional distress predicated on facts arising out of a marital relationship also raise the possibility of blackmail suits and intrusion into privacy, they do not carry the sanie potential for abuse as did the two abolished actions.10 One reason is that intentional infliction of emotional distress is harder to prove than the two abolished actions. In an action for alienation of affections the plaintiff was assisted by both the law's presumption of affection between the spouses and the presumption that if no affection existed between the spouses reconciliation might have been possible had the defendant not interfered. These presumptions eased the plaintiffs burden of proof and left the defendant with a difficult burden.11 In a criminal conversation action, the plaintiff had to prove only two elements and could establish adulterous conduct through circumstantial evidence. In contrast, a plaintiff who alleges intentional infliction of emotional distress must establish that the defendant intended to cause the plaintiff emotional distress, that the defendant's conduct was extreme and outrageous, and that the plaintiffs resulting emotional distress was severe. The two abolished actions required none of these elements. The elements of the tort of intentional infliction of emo*817tional distress and the difficulty of proof provide built-in safeguards to prevent its abuse.
Third, judgments in alienation of affections and criminal conversation actions compensate intangible injuries and may be excessive and arbitrary. Juries may have awarded damages in the two abolished actions to punish the defendant's misconduct rather than for the harm inflicted.
In intentional infliction of emotional distress, the measure of damage is serious emotional harm. All com-pensable personal injuries, including physical harm, pain and suffering, and emotional distress, carry the risk of excessive and arbitrary awards. Compensation for serious emotional distress is, however, the only basis for damages in an intentional infliction of emotional distress action.12 Proof of the severity of the emotional distress affords evidence of the genuineness of the distress.
Through the tort of intentional infliction of emotional distress society recognizes that emotional distress is as significant as physical injury. Our court has recognized the fact-finder's ability to assess damages in intentional infliction of emotional distress actions. See Alsteen v. Gehl, 21 Wis. 2d 349, 359, 124 N.W.2d 312 (1963).
Fourth, the difficulty of determining liability made the alienation of affections tort inequitable. In alienation of affections actions the plaintiff had to prove that the defendant was the controlling cause of the loss of affections. The tort concept of causation is too simplistic when the interest protected is the marital relationship. Marriages vulnerable to a third party's interference are *818often troubled ones for a number of reasons. Assigning blame and causation for interference with the complex relationship of marriage is extraordinarily difficult, if not impossible. To mask the difficulties of proving causation a plaintiff may manipulate the sympathies, prejudices and passions of a jury by stressing the defendant's misconduct.
The tort concept of causation is more applicable in intentional infliction of emotional distress actions because the fact-finder need not examine the complex causes of the dissolution of a marriage.
Fifth and finally, alienation of affections and criminal conversation actions rest on the outmoded view that the husband and wife are one under the law and that each has a property interest in the other's person. Alienation of affections actions derive from the master-servant action of enticement; the law treated the wife as the husband's property, and the action sought to protect the husband's interest in his wife's services. Criminal conversation, the tort version of criminal adultery, protected the husband's interest in exclusive sexual intercourse with his wife; the husband could recover damages even when the wife consented to or initiated intercourse with another man. With the adoption of the Married Women's Property Act in Wisconsin in the 19th century, the courts extended the proprietary concept of these two causes of action to wives. Unlike the two abolished actions, intentional infliction of emotional distress is not based on dated property law concepts of marriage.
Individuals may intentionally inflict emotional distress in circumstances other than the marital relationship. The plaintiffs complaint in this case does not allege an interference with the marital relationship. The defendant's conduct thus constitutes a tort separate and independent from the torts of alienation of affections *819and criminal conversation. Intentionally inflicted emotional distress is no less emotional distress and no less an actionable tort because the emotional distress was intentionally inflicted in a fact situation which may have, in another era, given rise to a claim for alienation of affections or criminal conversation.
I conclude, as several courts have concluded in similar cases, that the legislature did not intend to abolish a claim for the separate tort of intentional infliction of emotional distress when it abolished the causes of action described in sec. 768.01, because intentional infliction of emotional distress does not implicate the same public policies.13 I therefore conclude that the plaintiff should be afforded the opportunity to attempt to prove his cause of action.
*820For the reasons set forth, I dissent. I would reverse the order of the circuit court and remand the cause to the circuit court.
I am authorized to state that Chief Justice Nathan S. Heffernan joins this dissent.
For discussions of the three causes of action, see, e.g., Feinsinger, Legislative Attack on "Heart Balm," 33 Mich. L. Rev. 979 (1935); Note, Power Abuse as a Basis for Alienation of Affections: Nelson v. Jacobsen, 1985 B.Y.U. L. Rev. 183 (1985); Note, Loss of Consortium and Intentional Infliction of Emotional Distress: Alternative Theories to Alienation of Affections, 67 Iowa L. Rev. 859 (1982); Note, Cannon v. Miller: The Brief Death of Alienation of Affections and Criminal Conversation in North *811Carolina, 63 N.C.L. Rev. 1317 (1985); Note, The Suit of Alienation of Affections: Can Its Existence be Justified Today?, 56 N.D.L. Rev. 239 (1980); Note, The Case for Retention of Causes of Action for Intentional Interference with the Marital Relationship, 48 Notre Dame Lawyer 426 (1972); Note, Hunt v. Hunt: The Status of the "Heartbalm" Torts in South Dakota, 27 S.D. L. Rev. 160 (1982); Note, Nelson v. Jacobsen: A New Causation Standard for Alienation of Affection Actions, 1984 Utah L. Rev. 885 (1984).
See also Prosser and Keeton on Torts, sec. 124, p. 918 (5th ed. 1981); Restatement (2d) of Torts sec. 683, p. 478 (1977).
See also Prosser and Keeton on Torts, sec. 124, p. 917 (5th ed. 1981); Restatement (2d) of Torts sec. 685, p. 484 (1977).
Prosser and Keeton on Torts, sec. 12, pp. 60-62 (5th ed. 1981).
See also Restatement 2d of Torts, sec. 46, pp. 71-72 (1977); Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983).
The analysis used in Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (Pa. Super. Ct. 1984), is persuasive. That court contrasts a parent's action for alienation of a child's affection and a parent's action for intentional infliction of emotional distress. The court differentiated between the two causes of action because the elements of the torts — especially the alleged harms — were distinct.
"In an action for the intentional infliction of emotional distress, the central inquiry is whether there was intentional, outrageous conduct and whether the plaintiff suffered severe distress as a result of that conduct. The focus, then, is on the effect the conduct has on the plaintiff. Whether the conduct actually alienated the child may be irrelevant. Conversely, in an action for alienation of the affections of a child, it is not necessary that the conduct involved be outrageous and, more importantly, the focus is on the effect the prohibited conduct has on the child." Bartanus, 480 A.2d at 1185.
For a similar holding, see Van Meter v. Van Meter, 328 N.W.2d 497 (Iowa 1983).
For compilations of state statutes and cases, see Prosser and Keeton on Torts, sec. 124, p. 929-930 (5th ed. 1981); Note, Loss of Consortium and Intentional Infliction of Emotional Distress: Alternative Theories to Alienation of Affections, 67 Iowa L. Rev. 859, 859, n.4 (1982); Note, Power Abuse as a Basis for Alienation of Affections: Nelson v. Jacobsen, 1985 B.Y.U. L. Rev. 183, 183 (1985); Note, Cannon v. Miller: The Brief Death of Alienation of Affections and Criminal Conversation in North Carolina, 63 N.C.L. Rev. 1317, 1326-1327 (1985); Note, The Suit of Alienation of Affections: Can Its Existence be Justified Today?, 56 N.D.L. Rev. 239, 247, n.75 (1980); Note, Hunt v. Hunt: The Status of the "Heartbalm" Torts in South Dakota, 27 S.D.L. Rev. 160, 164 (1982); Note, Nelson v. Jacobsen: A New Causation Standard for *815Alienation of Affection Actions, 1984 Utah L. Rev. 885, 891-92, nn.50, 51 (1984).
For evaluations of the reasons for abolishing alienation of affections and criminal conversation actions, see Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash. 2d 99, 615 P.2d 452 (1980); Prosser and Keeton on Torts, sec. 124, p. 929-30 (5th ed. 1981) and commentary cited in notes 2 and 9 above.
See Brown v. Thomas, 127 Wis. 2d 318, 379 N.W.2d 868 (Ct. App. 1985), holding that chapter 768 abolishing actions for breach of contract to marry did not bar a claim for the return of an engagement ring. Abolishing a claim for return of an engagement ring did not further the purpose of chapter 768 to prevent extortionary conduct.
Note, The Suit of Alienation of Affections: Can Its Existence be Justified Today?, 56 N.D.L. Rev. 239, 244 (1980).
Compare the descriptions of the harms for the three torts. Restatement (2d) of Torts, sec. 46, p. 78, sec. 683, p. 482, sec. 685, p. 485 (1977).
For several cases in other jurisdictions reaching the same result as I reach, see, e.g., Van Meter v. Van Meter, 328 N.W.2d 497, 498 (Iowa, 1983) ("the elements of the tort of intentional infliction of emotional distress, and some of its policy considerations, are different from those in an alienation claim"); Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (Pa. Super. Ct. 1984) (no cause of action recognized for alienation of child's affection but cause of action for intentional infliction of emotional distress recognized); Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985) (no cause of action recognized for alienation of child's affection; independent tort of intentional infliction of emotional distress recognized even if facts may have overtones of affection alienation); O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986) (alienation of affections abolished; independent cause of action for invasion of privacy permitted); Prosser and Keeton on Torts, sec. 124, p. 930 (5th ed. 1981).
For a case supporting the result the majority opinion reaches, see Richard P. v. Superior Court (Gerald B.), 202 Cal. App. 3d 1089, 249 Cal. Rptr. 246 (1988).