(concurring and dissenting):
I concur with Justices Stewart and Durham in abolishing the tort of the criminal conversation. However, the basis for my reaching this result leads me to dissent from Justice Stewart’s, the Chief Justice’s, and Justice Howe’s continued recognition of the tort of alienation of affections. As Justice Durham notes, the refusal of this court in Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), to recognize a cause of action for loss of consortium also dooms the torts of criminal conversation and alienation of affections, because all three torts are grounded on common legal and historical premises. As Justice Durham notes, any legitimate interests to be protected are covered by other causes of action. Therefore, I would affirm the dismissal of the entire action.
Justice Howe, writing for a majority on the issue of alienation of affections in Sharp v. Roskelley, and Justice Stewart, writing for the majority in this case on the same issue, rely upon Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983). In that case, this court affirmed Utah’s recognition of a cause of action for alienation of affections. However, the Nelson opinion, like the opinions of Justices Howe and Stewart in Sharp and the instant case, conspicuously lacks any analysis of the history of the Utah common law basis for the cause of action, a basis that is shared by the common law actions of loss of consortium and criminal conversation. The Nelson court simply asserted that although the traditional basis for these causes of action — the husband’s ownership of his wife’s services — may be untenable today, the alienation of affections cause of action was sustainable on the ground newly fashioned elsewhere of providing protection for relational interests. On that basis, the Nelson court said that the cause was equally available to husbands and wives.
However, in Hackford, the lead opinion gave the underlying theoretical issues their first detailed analysis and found no basis for concluding that Utah had accepted the *23transformation of the chattel-based causes of action into relationship-based causes of action. The court then declined to recognize a loss of consortium cause of action. It is true that Justice Howe, joined by the Chief Justice, did not join the three-judge lead opinion in Hackford to the extent that it impugned the foundation of Nelson and the alienation of affections cause of action, but Justice Howe’s separate opinion in Hackford does not contain any alternative analysis of the theoretical foundation of a claim for loss of consortium that would distinguish it from alienation of affections. Consistent with the analysis contained in the lead opinion in Hackford and in the result reached there by a majority of the court, today a majority of the court announces the abolition of the anachronistic and draconian tort of criminal conversation. I would go further, following the logic of Hackford’s holding and the lead opinion, overrule Nelson, and abolish criminal conversation’s close cousin, the tort of alienation of affections.1
In response to Justice Howe’s dissent on the criminal conversation question, I note that not only legal theory, but sensible policy, fully supports our abolition of the tort of criminal conversation. As it is articulated by Justice Howe, a criminal conversation action would lie against anyone who has sexual relations with a person who is legally married until the date his or her divorce is final. It might be nice if all those legally married but separated or in the throes of a divorce would remain chaste until their divorces are final. However, in the real world, where almost half of the marriages end in divorce and many live apart for extended periods before their divorces are final, such a delicate moral sensibility cannot justify preservation of a cause of action that has no realistic potential for preserving marriages and almost limitless potential for mischief in the hands of spiteful estranged spouses. Justice Howe, joined by the Chief Justice, would have the court announce that one party to a failed marriage may use the judicial system to vindictively inflict pain on the other party for not conforming to a code of sexual conduct which the populace, on the whole, does not share. I am pleased that we have declined that suggestion.
I fear, however, that the failure of a majority of the court to follow the logic of the Hackford decision and also abolish the alienation of affections cause of action will permit many of the same abuses of the judicial system that would flow from the tort of criminal conversation. The modifications Justice Stewart makes in the cause of action, which continues the restrictive tinkering started by Justice Oaks in Nelson, only ameliorates the evils of this cause of action; it does not eliminate them.
. Justice Stewart, in footnote 2 of his opinion, suggests that my opinion in this case mischarac-terizes the lead opinion in Hackford. His mis-characterization of this opinion is apparently based on some notion that because I rely on the logic of the Hackford lead opinion, I must be claiming that a majority of the court joined in that opinion’s criticism of Nelson and the logical basis for the tort of alienation of affections. As any careful reader of this opinion will note, I specifically acknowledge that no other member of the Hackford majority joined that portion of my lead opinion. I claim no more for Hackford than that I would follow the logic of my opinion in Hackford, and what Justice Durham has properly characterized as the logic of the result reached by a majority of the court in that case, to abolish the tort of alienation of affections. I add this footnote for the benefit of those who may be puzzled by Justice Stewart’s footnote.