In the recent precedent-setting decision of Matthew v. Herman (S. Ct. Civ. No. 2009-0074), the Virgin Islands Supreme Court overturned a $125,000 jury award against a man who was sued for breaking up another man’s marriage, ruling the common law principle cited at trial did not apply, was antiquated, and out of step with a majority of United States states and territories.
In 2009, a jury awarded Dermont Herman $125,000 from Matthias Matthew in relation to Herman’s divorce from his wife, Francisca Herman. The jury awarded Herman $75,000 for alienation of affection, a cause for legal action or "tort" in common law, meaning a person who intentionally causes someone’s spouse to lose affection. And another $50,000 for criminal conversation, another common law tort which makes the third person liable for the sexual relations.
Justice Maria Cabret wrote the May 15 opinion, ruling the lower court erred in relying upon The Second Restatement of Torts, a legal treatise describing the state of common law in the United States. The Restatements of Law authored by the American Law Institute describe the legal community’s consensus on common law across jurisdictions, and is incorporated into Virgin Islands law in the absence of statutory or case law to the contrary and are often cited by courts in deciding cases.
The defendant successfully preserved his argument that the Virgin Islands should not recognize these "amatory torts" through both an oral motion to dismiss the complaint and a motion for a judgment as a matter of law at the close of all evidence. While these causes of action are found in Restatement of Torts, this Court possesses inherent power to shape the common law in the Virgin Islands, including the discretion to decline to follow Restatement provisions.
While some parts of the Restatements of Law have been cited in court decisions, Cabret wrote the Virgin Islands Supreme Court’s research "has not disclosed a single opinion written in the Virgin Islands to ever cite" the particular common law principles cited in Superior Court.
The torts of alienation of affection and criminal conversation with a spouse, the so-called “amatory torts,” have never been recognized in the Virgin Islands, and have been abolished in the vast majority of American jurisdictions, because they were originally founded on the idea that wives were property of their husbands, the torts have destructive effects on existing marriages, and it is not feasible adequately to value and address the harms caused by adulterous behavior.
"The reasons given for abolishing the amatory torts differ from jurisdiction to jurisdiction, but generally the emphasized concerns are (1) the torts were originally founded on the idea that wives were property of their husbands, (2) the torts have destructive results on existing marriages, and (3) the courts are unable to adequately valuate and address the harms caused by adulterous behavior," Cabret wrote.
Former 5 V.I.C. § 856(2), an evidence rule that has since been repealed, concerned only the spousal testimonial privilege, and did not establish the elements of any tort or the damages available for the conduct addressed. That former legislative reference to these causes of action did not expressly establish the torts and did not affect the courts’ common law authority to set out the elements, or even abolish, these torts. Therefore, the amatory torts of criminal conversation and alienation of affection are not recognized in the Virgin Islands, and the Superior Court’s judgment is vacated and the case is remanded with instructions to dismiss the complaint.