The following list outlines, in summary form, the changes that the doctrine of consortium has undergone:
• Criminal conversation: Only men can collect until the late nineteenth century, when women acquire rights to sue, but the doctrine itself simultaneously dwindles in importance at the same time.
• Alienation of affections: Only men can collect until the late nineteenth century, when women acquire rights to sue.
• Wrongful death: Only men can collect for loss of services by other household members until mid-nineteenth-century statutes intervene. After that, a remarkable change occurred: men could no longer recover damages. Women could now claim damages for pecuniary loss of support through disappearance of the male wage-earner. From that point on, nonpecuniary losses are only nominally recognized; during the twentieth century, slow movement is made toward compensation for nonpecuniary losses.
• Injury-. Only men can collect, for loss of a wife’s services.
After the 1950s, gradually, women can collect for loss of marital companionship as a result of a husband’s injury.
As legal discourse and practice with regard to consortium changed, so too did the use of separate spheres and hostile worlds distinctions. Throughout this history we have been reviewing, legal specialists invoked the image of two worlds, one of sentiment, the other of rational efficiency, operating according to distinctive rationales with very different consequences for their participants. They repeatedly warned that blurring the boundary between the worlds would contaminate both of them, by making sentimental relationships mercenary or introducing personal considerations into business dealings. They generally called up separate spheres imagery to mark boundaries whose moral value they prized. But the relevant moral values, the distinctions, and the justifications changed deeply over time.
For one thing, nineteenth-century legal developments increasingly distinguished the position of wife from that of servant and increasingly marked that boundary with rights distinctive to wives. By the 1930s, what had once seemed an unimportant legal boundary became paramount: a wife’s practical services could no longer be distinguished from her sentimental attachment to her husband. Analysts thus shifted the application of hostile worlds reasoning. Jacob Lippman made this abundantly clear as he argued the case for joint compensation of sexual, sentimental, and practical services:
It seems to me that if the right of consortium is to be recognized, there can be no distinction made between negligence actions and so-called intentional actions. The services of a wife cannot be said to include housekeeping and exclude affectionate care of the husband and children. Consortium which embraces all of these duties, must remain intact or else perish completely. (Lippman 1930: 668)
Thus, it was not simply a matter of justice but also a matter of preserving marriages from commercial contamination, by legally acknowledging their inextricable sentimental elements.
As the changing treatment of consortium suggests, American courts were doing relational work in three regards. First, they were deploying—and in the long term significantly modifying—the grid of relationships available for legal action and the distinctions among them. We see them, for example, increasingly distinguishing husband-wife relationships from those of master-servant and parent — child. Second, they were matching relations, transactions, and media, likewise altering legally acceptable definitions as they went along—eventually conceding the rights of women to collect for loss of consortium in cases of a husband’s injury and also moving reluctantly toward compensation for nonpecuniary losses, such as companionship, affection, personal care, and sexual relations.[12]
Third, courts partially reversed their reasoning. In addition to deducing appropriate transactions and media from the publicly recognized relationship, they also reasoned from observed transactions to the relationship’s quality. In cases of injury to a spouse we see the participants debating the character of interactions between spouses—how loving, how attentive, and so on—in assessing appropriate damages for loss of consortium. Among the evidence relevant to such cases, American Jurisprudence lists “the character and conduct of the spouses, the quality of the relationship between the spouses, any impairment of the sexual relationship, and the length of the marriage” (41 Am. Jur 2d Husband and Wife § 264 (2004)). And a commentator in American Law Reports in the 1970s writes: “It has been held that in assessing the ‘value’ of a wife’s loss of her husband’s sexual relations, the jurors may consider not only frequency of such relations prior to the husband’s injury, but also evidence of how important a role sex plays in the wife’s life generally” (Litwin 1976).
We find a similar relational rationale in alienation of affection cases.[13] In the South Dakota case of Pankratz v. Miller (401 N. W. 2d 543 (S. D. 1987)), the plaintiff, Duane C. Pankratz, a veterinarian, sued Winston Miller, a childhood friend, for alienation of his German-born wife Elke’s affection. Duane and Elke had been married for twenty years and had five children. Miller entered the couple’s life when after many years of absence, he returned to South Dakota as an insurance salesman. Elke’s intimate relations with him began when she started commuting to attend summer school and spent one night away from home. In a 1986 decision the trial court awarded Duane $10,000 in actual damages and $10,000 in exemplary damages.
But a year later the Supreme Court of South Dakota reversed the judgment. Miller successfully argued that he had not been responsible for Duane’s loss of his wife’s affection. In fact, it was Elke who initiated their relationship: “The first time they were intimate, it was Elke who invited Winston up to her room. She sent him cards and gifts upon occasion; he did not reciprocate. They were not in love; Winston did not promise her any future relationship, nor did she make any such promises to him. Indeed, Elke was seeing another man at the time of trial” (547). Elke herself admitted that “our relationship [with Duane] was very strained by that time. … I lost my love and affection for my husband many years ago already” (546n.5). The court concluded that “the evidence shows that Elke’s affections for Duane were alienated long before her involvement with Winston” (547). A standard torts manual reporting on this case comments: “There is no liability if all affection between the spouses has already terminated and there is no affection to alienate” (Dobbs et al. 1988: 129).
Although they speak of it in other terms, American lawyers, judges, and juries regularly enact a standard procedure. They call up a relational matrix distinguishing different bundles of social ties, transactions, and media from each other. They match the relationship to its proper location within that matrix, reasoning from the public standing of the tie to appropriate transactions and media as well as from observed transactions to the tie’s proper legal definition. They negotiate a match. As they do so, they frequently justify their actions by means of hostile worlds rhetoric and practice, carefully distinguishing the relation at hand from others with which it might wrongly—and banefully—be confused.
In the transformation of coverture and consortium, participants in American legal processes deeply altered correspondences of relational packages, social categories, and legal categories. On the whole, these shifts did not eliminate legal boundaries between supposedly sentimental and rational spheres; instead, they redefined the location and character of that boundary. Most often, furthermore, legal categories lagged behind relational packages and social categories. Nevertheless, alterations in legal categories wielded influence of their own. For example, married women acquired rights to dispose of their property and their earnings without their husband’s authorization.
Within the legal arena, in fact, weighty struggles continue over the purchase of intimacy. Legislatures debate laws that govern marriage, cohabitation, parentage, inheritance, and sexual practices, not to mention such forms of intimacy as doctor-patient relations. Lawyers, judges, and juries respond to novel cases by negotiating new interpretations of existing law. Throughout these changes, furthermore, legal scholars formulate critiques, codifications, and doctrines that, if adopted by legislatures or courts, significantly shape subsequent legal practices. A selective review of recent debates among legal scholars will illustrate connections between current legal practices and arguments over fundamental principles.