(concurring and dissenting):
I concur in part I retaining the tort of alienation of affections for the reasons expressed in the majority opinion and for the reasons discussed in Sharp v. Roskelley, 818 P.2d 4 (Utah 1991), but I dissent from part II, which abolishes the tort of criminal conversation.
The defendants here and in Sharp v. Roskelley contend that the tort of criminal conversation should no longer be recognized in this state and urges us to judicially abolish it. In the last criminal conversation case before this court, Cahoon v. Pelton, 9 Utah 2d 224, 342 P.2d 94 (1959), we stated that the tort is based upon the exclusive right of each spouse to intercourse with the other and that a cause of action would lie with either the husband or the wife against anyone who violated that right. We explained:
“A fundamental right which flows from the relation of marriage, and one which the well being of society requires should be maintained inviolate, is that of one spouse to have exclusive marital intercourse with the other, and whenever a third person commits adultery with either spouse, he or she commits a tortious invasion of the rights of the other spouse, from which a cause of action for criminal conversation arises.”
9 Utah 2d at 232, 342 P.2d at 99 (quoting 27 Am.Jur. Husband and Wife § 535). We concluded in Cahoon that the policy expressed in the above-quoted material was in accord with our statutes emancipating married women, Utah Code Ann. §§ 30-2-1 to -19 (1953), and the decisions of this court on the rights of married persons as between them and other persons who come between spouses. 9 Utah 2d at 232, 342 P.2d at 99.
Other courts and authorities have similarly stated that the basis of the cause of action for criminal conversation is the invasion of the marital relationship. Fennell v. Littlejohn, 240 S.C. 189, 125 S.E.2d 408 (1962). In that case, the court emphasized the interest of the state in protecting marriage contracts. Said the court:
While marriage is in one sense a private contract between the parties, it is also a relationship in which the state is vitally interested and, because of such interest, the law attaches thereto certain rights and duties, irrespective of the wishes of the parties. Marriage is in its nature a permanent status and has been properly referred to as the most important of all civil relations. The relationship, once entered into, cannot be dissolved by consent of the parties. It continues until death or dissolution by proper judicial decree.
240 S.C. at 196, 125 S.E.2d at 412.
The court recognized a public policy to foster and protect marriage, to make it a permanent and public institution, to encourage parties to live together, and to prevent separation. The court referred to marriage as an institution in the maintenance of which the public is deeply interested, “for it is the foundation of the family and society, without which there would be neither civilization nor progress.” 240 S.C. at 197, 125 S.E.2d at 412-13.
*19Similarly, in a dissenting opinion in Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976), Justice Roberts observed, as we did in Cahoon, that while the cause of action originally was to protect the property right of the husband in his wife, the action is now equally available to husband or wife, and the basis of the action today is not the protection of property rights but the protection of conjugal rights. 469 Pa. at 285, 365 A.2d at 153. He pointed out that respected authorities on the law of torts have noted that the interests involved in the familial relationship are among the most delicate and important in our society. Quoting from W. Prosser, Handbook of the Law of Torts § 1, at 6 (4th ed. 1971), that tort liability must be predicated upon conduct which is “socially unreasonable,” he observed that our society still considers it socially unreasonable for one person to have sexual relations with the spouse of another. 469 Pa. at 285, 365 A.2d at 154. He concluded that an action for criminal conversation is legitimate for the invasion of this marital interest.
The American Law Institute in its Restatement (Second) of Torts, § 685 (1977), likewise recognizes the exclusive right of married persons to sexual intercourse with each other:
One who has sexual intercourse with one spouse is subject to liability to the other spouse for the harm thus caused to any of the other spouse’s legally protected marital interests.
In accordance with case law, the Restatement in comment d states that the aggrieved spouse is entitled to recover damages even though he or she sustains no further loss, but if there has been additionally an alienation of affections, the aggrieved spouse may also recover damages for that alienation.
Some states have abolished the tort of criminal conversation by legislative enactment. However, only seven states have judicially abolished the tort. Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980); Feldman v. Feldman, 125 N.H. 102, 480 A.2d 34 (1984); Lynn v. Shaw, 620 P.2d 899 (Okla.1980); Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976); Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981); Irwin v. Coluccio, 32 Wash.App. 510, 648 P.2d 458 (1982). In each of those cases, the court relied in whole or in part on conditions in that state which are not present in Utah. In the Iowa, Pennsylvania, and South Dakota cases, the courts reasoned that because adultery had been decriminalized in those states, a civil remedy should no longer be accorded. The basis of the decision in the Maryland case was that Maryland had never recognized the right of a wife to sue for criminal conversation and thus the cause of action violated the equal rights amendment to its state constitution. In the Oklahoma case, the basis of the decision was that the legislature had abolished causes of action for seduction and thereby impliedly abolished the tort of criminal conversation. In the Washington case, the court of appeals abolished the cause of action for criminal conversation because the supreme court of that state had earlier abolished the cause of action for alienation of affections. The court of appeals opined that the supreme court’s reasoning for doing so was equally applicable to abolishment of criminal conversation. The New Hampshire court relied on the facts that actions for alienation of affections had been abolished in that state and that the defendant honestly believed that the offending spouse was not married (see infra where I advocate that such a belief should be a valid defense).
It is clear that none of the reasons relied upon by the seven courts which have abolished actions for criminal conversation are relevant to our determination here: Adultery has not been decriminalized in Utah; the action for criminal conversation is equally available to both husband and wife; and neither the legislature nor this court has abolished actions for alienation of affections or seduction. It is interesting to note that in several states where actions for alienation of affections or criminal conversation or both have been legislatively or judicially abolished, courts have given judicial approval to actions bearing different names but protecting the same familial in*20terests. See O’Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986), where the court abolished causes of action for alienation of affections but gave judicial sanction to a cause of action for invasion of privacy, and Raftery v. Scott, 756 F.2d 335 (4th Cir.1985), holding that although Virginia by statute had abolished actions for alienation of affections, this did not preclude a father’s action against the mother for infliction of emotional distress incurred by the mother’s efforts to turn the child against the father, even though the substituted cause of action had some overtones of alienation of affections but stating that it was a separate and distinct tort. See generally W. Keeton, Prosser & Keeton on the Law of Torts § 124 (5th ed. 1984).
The reasons given by this court in Cahoon v. Pelton for the continued recognition of criminal conversation are still persuasive today, and I eschew the invitation of defendant to now judicially abolish it. In my research, I have found no authority discounting the value or importance of familial interests. Whether there are better means of protecting those interests than the action for criminal conversation is a matter which is better left to the legislature to decide. In that forum, the pros and cons can be debated and toe elected representatives of the people can determine whether this cause of action has outlived its usefulness or whether it is effective in protecting what everyone concedes to be a worthwhile interest. The legislative route has been taken in the overwhelming majority of states where actions for criminal conversation and alienation of affections have been abolished. As earlier pointed out, only seven states have judicially abolished actions for criminal conversation. Only three states have judicially abolished actions for alienation of affections. O’Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986); Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980). The Supreme Court of Minnesota in Gorder v. Sims, 306 Minn. 275, 237 N.W.2d 67 (1975), spurned the urging of the appellant to abolish actions for alienation of affections and deferred to legislative action. Said the court:
So far as any institution can, [the legislature] represents the attitude of the public in matters of this kind. Until the legislature declares that individuals are free to intrude themselves upon the special relationship which exists between a husband and wife, we feel no compelling sense of urgency to do so. It may be true that rules relating to the behavior of married persons have become relaxed in current times, but, whatever the extent of that relaxation, the jury (presumably representative of community mores in Hennepin County), having been fully instructed by the trial court as to the essential elements of the cause of action, concluded that permissiveness had been abused in this case by defendant, to plaintiff’s damage.
306 Minn. at 282-83, 237 N.W.2d at 71-72.
Much of the criticism which has been leveled at the tort of criminal conversation has been directed toward its lack of defenses. That objection can be largely overcome by recognizing valid defenses on a case-to-case basis. For example, it is not a defense at common law that a defendant did not know or have reason to believe that his or her sexual partner was married. See Restatement (Second) of Torts, § 685 comment f (1981). If this lack of defense is perceived to be unjust, we can create such a defense when the proper case arises. (No such claim is made in the instant case.) In addition, there are several factors which may be properly introduced into evidence to minimize damages. In the determination of the amount recoverable for emotional distress, the plaintiff’s neglect or indifference toward the other spouse is a factor to be considered, or if the other spouse has previously had sexual relations with other persons, the damages will be reduced. Id. at comment g. With the creation of proper defenses on a case-to-case basis and the introduction into evidence of minimizing factors, the judge or jury can, in its award of damages, insure that a defendant’s liability corresponds to the degree of his or her culpability.
*21Justice Stewart, writing for a majority, maintains that a defendant may be held liable even though the marital interests of the non-offending spouse are not damaged because the marriage is already strained. I cannot subscribe to that justification. The policy of the law is to keep married couples together. Even if a marriage is in trouble, reconciliation is always possible and many times very probable. To allow a third person to interfere with a troubled marriage by having sexual intercourse with one of the spouses only exacerbates the situation. Nothing will more quickly destroy all chances for reconciliation than adultery by one or both parties.
Many of the arguments which Justice Stewart advances for keeping the cause of action for alienation of affections also auger in favor of keeping the cause of action for criminal conversation. Stare decisis, as well as approval in section 685 of the Restatement (Second) of Torts, supports its retention. Consequently, I would leave it to the state’s policy maker, the legislature, to abolish criminal conversation rather than to this divided court.
HALL, C.J., concurs in the concurring and dissenting opinion of HOWE, Associate C.J.