Thursday, February 6, 2020

The Rise and Fall of Heart Balm Actions for Intimate Deception: “Itching Palms in the Guise of Aching Hearts”

Why hasn’t the law regulating intimate deception attracted more scholarly attention?  One potential explanation is that unsuccessful lawsuits tend to generate less interest than successful ones, and most deceived intimates do not win in court.  Indeed, the remedies available for intimate deception have contracted significantly since the early twentieth century.  This post draws on my recent book, Intimate Lies and the Law, to explore how anti-heart balm legislation helps explain that change.

In the nineteenth and early twentieth centuries, some deceived women were able to obtain redress by using common law causes of action for seduction or breach of promise to marry.  These plaintiffs reported that they had been deceived into sex through false promises of marriage—promises men had made while never intending to carry them out.  Such deceit could cause substantial injury, especially for women left pregnant and unwed.

Starting with Indiana in 1935, however, a wave of state legislatures prohibited suits for seduction and breach of promise to marry.  The key argument behind this flurry of “anti-heart balm” legislation was that the women pursuing seduction or breach of promise claims were fraudsters concealing their “itching palms in the guise of aching hearts.”

Lawmakers presented no actual evidence that female plaintiffs were lying about their experiences.  Instead, legislators relied on circular logic.  The proof that women bringing seduction or breach of promise actions were dishonest graspers advancing “blackmail suits” was the very fact the women had sued.  After all, “self-respecting women” did not publicly accuse men of misconduct.

The reasoning that propelled anti-heart balm laws forward does not fare well in the light of modern scrutiny.  Yet these laws are not dusty relics.  Courts continue to rely on them when blocking litigation from deceived intimates.

In fact, courts have interpreted anti-heart balm laws expansively.  If you were once engaged and did not marry, courts typically will not let you sue your former fiancé for deceiving you about anything—even if it is unrelated to the broken engagement itself.  Some courts have interpreted statutory prohibitions on breach of promise to marry litigation so broadly that they use those prohibitions to dismiss litigation between people who actually married, where no promise to marry was breached at all.

In short, the enactment of anti-heart balm laws and their expansive interpretation help explain why we have fewer remedies for intimate deception than we did in the early twentieth century.  Judges invoke anti-heart balm laws to stop as much litigation over intimate deception as they can.

— Jill Hasday