JONATHAN TURLEY: Former Sen Kyrsten Sinema fights affair lawsuit invoking centuries-old marriage tort

Former Sen. Kyrsten Sinema is continuing to challenge the lawsuit brought by the wife of her former security guard and lover, Matthew Ammel. Sinema has admitted to having an affair with Ammel while she was the Democratic senator from Arizona. Heather Ammels lawsuit alleges the tort of alienation of affection, an action many may find outdated in our more open or indulgent culture. I start teaching my torts class this week, and the alienation tort remains a controversy at the intersection of tort and constitutional law.

There was a time when most states had morality crimes that punished adultery or homosexuality. They have been largely scrubbed from our books due to constitutional challenges and changing social mores. However, a spouse can still sue civilly over a third party ruining a marriage through adultery.

Such "heart balm" actions go back to the earliest days of tort liability. However, the tort has been abolished in 42 states, leaving Hawaii, North Carolina, Mississippi, New Mexico, South Dakota and Utah as the exceptions.

COURT FILINGS REVEAL KYRSTEN SINEMA HAD SEX MULTIPLE TIMES WITH MARRIED BODYGUARD WHILE SERVING AS SENATOR

Early tort cases spoke of two violative acts: enticement and seduction. The tort of enticement "involved assisting or inducing a wife to leave her husband by means of fraud, violence, or persuasion." Seduction was more straightforward and only required "an adulterous relationship between the plaintiffs spouse and the defendant."

Critics have long charged that this tort is based on early concepts of the wife being the property of the husband and that there are lingering constitutional questions over holding individuals liable for consensual sexual relationships.

That proprietary element echoes in some of the earliest English cases, such as Winsmore v. Greenback in 1745. In that case, a man was sued for "maliciously and wickedly intending to injure the plaintiff … and to alienate the affection of the wife from the plaintiff." The court found that the paramour had "persuaded procured and enticed the said wife" and thereby denied the husband of his "exclusive and legally enforceable right to his wifes service." Winsmore v. Greenbank, Willes 577. 125 Eng. Repts. 1330 (1745)); see also Michele Crissman, Alienation of Affection: An Ancient Tort – But Still Alive in South Dakota, 48 S.D. L. Rev. 518, 519 (2003); Jamie Heard, The National Trend of Abolishing Actions for the Alienation of a Spouses Affection and Mississippis Refusal to Follow Suit, 28 Miss. C. L. Rev. 313 (2008-2009).

State courts have found the action to be outmoded and abused:

North Carolina is one of the holdouts. Sinemas counsel and then sought to dismiss it on the jurisdictional grounds that none of the sex occurred in North Carolina.

In depositions, Sinema confirmed sexual encounters beginning in California at the home of her friends Penny and Grant Croissant: "We were staying at an Airbnb in Napa, California. We were outside. Matt kissed me. We went inside and had sex."

She also detailed having sex with Ammel at the wedding of CNN anchor Jessica Dean in New York City as well as at her Washington, D.C., apartment, in Arizona, and in Colorado.

The jurisdictional question is whether the denial of sex in North Carolina means that the courts there lack jurisdiction, as opposed to the claim that the shattered marriage, a