As a genre, alienation of affection claims, called “criminal conversation” in some jurisdictions are all but archaic reminders of an earlier age. “Clergy malpractice” claims sometimes were merely alienation of affection claims or “criminal conversation” claims in a different wrapper. The few states that still allow alienation of affection claims or “criminal conversation” claims require that the claimant prove the marriage was a good one before the interloper intervened. Most claimants could not make such proof by the 20th century. In the 19th century, these types of tort claims were considered necessary to protect women because women were considered vulnerable dependents.
In Mosby v Kleinguetl, Slip Op. (Tex. Civ. App. 14th, 2021), the Plaintiff alleged that “counseling sessions” “devolved into a ‘personal relationship’ that culminated in … divorce.” The Plaintiff alleged this was part of a pattern of conduct. The trial court twice permitted the Plaintiff to amend the Petition to allege jurisdictional facts but dismissed the case. In other words, the Plaintiff could not allege facts supporting a claim that a good marriage was destroyed by incompetent or intentional conduct that was actionable. The appellate court did not hold, and probably deferred such a holding to the Supreme Court of Texas, that there no longer are justiciable tort claims for alienation of affection or “criminal conversation” in Texas. However, it reached the same result.
It probably does not require pronouncement in this report that a sexual relationship between counselor and counseled is not a good idea. A “personal relationship” seems all but unavoidable in counseling relationships that extend over a period of time but counseling professionals know to avoid escalation and so too should church counselors. Common sense would demand such restraint. Nevertheless, these relationships may no longer be in the purview of tort law.