## Facts

- Thomas Neal and Mary Neal were married and had a child.
- After moving to Boise, Idaho, Thomas began a medical residency and also traveled to Spokane, Washington for work, where Jill LaGasse lived.
- Thomas and LaGasse began a secret extramarital affair that lasted for months.
- During the period of the affair, Thomas had sexual intercourse with both Mary and LaGasse.
- Mary later discovered the affair, confronted Thomas, and Thomas admitted the relationship and indicated he wanted a divorce.
- In the divorce litigation, Mary asserted tort claims against Thomas and LaGasse seeking damages arising from the adulterous relationship, including:
  - a claim framed as an actionable right to an exclusive sexual relationship with her spouse (a criminal-conversation-type theory),
  - a claim for mental anguish based on fear that she might have contracted a sexually transmitted disease due to Thomas’s concurrent sexual relationship, and
  - a claim that Thomas committed civil battery by having intercourse with her while concealing the affair, because she alleged she would not have consented had she known.
- The tort claims were transferred out of the magistrate court and then dismissed by the district court.
- Mary appealed from the district court’s dismissal.

## Issues

1. Whether Idaho law recognizes a tort claim based on a spouse’s alleged right to an exclusive sexual relationship (i.e., a criminal-conversation-type theory) arising from adultery.
2. Whether a spouse may recover damages for mental anguish based on fear of contracting a sexually transmitted disease where the allegations do not show actual exposure to a disease.
3. Whether sexual intercourse constitutes a civil battery when the plaintiff consented to the physical act but alleges the consent was invalid because the spouse concealed an extramarital affair.

## Decision

- The Idaho Court of Appeals answered each issue “no” and affirmed the district court’s order dismissing Mary’s tort claims.
- The court held Idaho does not provide a civil cause of action for damages based on an asserted right to an exclusive sexual relationship with one’s spouse.
- The court held allegations of fear of sexually transmitted disease, without allegations showing actual exposure, were too speculative to support recovery.
- The court held the alleged facts did not state a civil battery because Mary consented to the intercourse, and that consent was not negated—on these allegations—by Thomas’s failure to disclose his infidelity.

## Legal Principles

- Idaho does not recognize a tort claim that effectively seeks damages for adultery based on a spouse’s asserted right to exclusive sexual relations (a criminal-conversation-type claim).
- Emotional distress damages for fear of contracting a sexually transmitted disease require allegations showing actual exposure; fear alone is insufficient.
- Civil battery requires unpermitted harmful or offensive contact; where a plaintiff consents to intercourse, nondisclosure of an affair—without more—does not make the contact a battery under the Court of Appeals’ analysis.

## Conclusion

The Idaho Court of Appeals affirmed dismissal of tort claims brought in connection with a husband’s extramarital affair, holding that Idaho law did not recognize a damages action based on an asserted right to exclusive marital sex, did not allow recovery for fear of sexually transmitted disease without allegations of exposure, and did not treat consensual marital intercourse as a civil battery solely because the husband concealed his infidelity.


Neal v. Neal, 873 P.2d 881 (1993)