## Facts

- A husband and wife married in 1984 and had one child.
- The couple moved to Boise in 1988 for the husband’s medical residency; his work involved travel where he met another woman.
- The husband began a secret sexual relationship with the other woman in late 1988 and had sexual relations with both women during the same period.
- The wife discovered the affair in spring 1989; the husband admitted it and said he wanted a divorce.
- In ensuing divorce litigation, the wife asserted tort claims against the husband and the other woman seeking damages for: loss of an “exclusive” sexual relationship, emotional distress from fear of contracting a sexually transmitted disease (STD), and civil battery based on alleged lack of informed consent to marital intercourse.
- The trial court treated defendants’ dismissal motion as a summary judgment motion and dismissed all tort claims; the intermediate appellate court affirmed.
- On review, the state supreme court assumed the wife’s factual allegations were true for purposes of evaluating dismissal/summary judgment.

## Issues

1. Whether Idaho recognizes a tort claim for “criminal conversation” or tortious interference with a marital contract based on a spouse’s asserted right to an exclusive sexual relationship.
2. Whether emotional-distress damages for fear of contracting an STD are recoverable absent allegations of actual exposure.
3. Whether allegations that sexual consent was obtained through concealment of an ongoing affair state a prima facie civil battery claim.

## Decision

- Affirmed dismissal of the criminal-conversation/interference-with-marriage claim; Idaho did not recognize such a cause of action.
- Affirmed dismissal of the fear-of-STD emotional-distress claim where no exposure to disease was alleged.
- Reversed dismissal of the civil battery claim and remanded for further proceedings because the allegations were sufficient to state a prima facie case.

## Legal Principles

- Idaho law does not provide a civil cause of action whose gravamen is adultery framed as “criminal conversation” or interference with marital contract rights.
- Emotional-distress recovery for fear of disease requires more than subjective fear; a plaintiff must allege actual exposure or an objectively grounded risk.
- Consent is not necessarily effective when procured by fraud, misrepresentation, or material nondisclosure concerning facts that bear on the nature of the contact or associated health risks; such allegations can support a civil battery claim.

## Conclusion

The court declined to recognize tort liability for adultery-based “heart-balm” theories and required allegations of exposure for fear-of-STD damages, but held that a spouse may pursue a battery claim where consent to sexual intercourse is plausibly alleged to have been vitiated by material concealment.


Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (Idaho 1994)