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NC appeals court upholds laws used to sue lover of unfaithful spouse

A N.C. appeals court upheld common laws that were cited to sue a Winston-Salem physician over a relationship with another man’s wife.
A N.C. appeals court upheld common laws that were cited to sue a Winston-Salem physician over a relationship with another man’s wife.

The North Carolina Court of Appeals has upheld the constitutionality of laws a man used to sue a Winston-Salem doctor who, according to court documents, had a sexual relationship with his wife.

Marc Malecek had sued Dr. Derek Williams, a physician at Wake Forest Baptist Medical Center, over the relationship between Williams and Malecek’s wife, Amber, a nurse at the hospital, according to court filings and a news report.

The case centered on two common laws that can be used to sue the lovers of unfaithful spouses.

North Carolina is one of seven states that allow “alienation of affection” lawsuits for interference with a marriage. The Malecek suit also cited “criminal conversation,” or adultery, as a basis.

The appeals court noted in its opinion Tuesday that both laws “were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.”

But the court rejected Williams’ argument that the laws are unconstitutional because they violate individual rights to intimate sexual activity and expression with other consenting adults.

A Forsyth County judge had agreed with Williams and dismissed Malecek’s case. The appeals court overturned that decision and returned the case to the lower court.

Unlike a Texas case in which a discriminatory sodomy law “stemmed from moral disapproval and bigotry,” the appeals court said, the North Carolina laws uphold a state interest in keeping marriages intact.

“They further the state’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken,” the three-judge appeals panel wrote. Preventing “personal injuries and societal harms is a substantial governmental interest,” it added.

The Winston-Salem Journal quoted a statement by Kim Bonuomo, one of Williams’ attorneys, that said the decision “leaves intact the antiquated torts.”

Malecek’s case, Bonuomo said, arose from “a now archaic view of marriage which relied on a spouse’s purported ‘property right’ in the other spouse.” The laws do nothing to preserve marriages or heal broken relationships, she added.

Malecek’s attorney, Scott Smith, said the decision was “entirely in accordance with the longstanding law and public policy of North Carolina,” the Journal reported.

Bruce Henderson: 704-358-5051, @bhender

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