STEWART, Justice:

This is an interlocutory appeal from the trial court's order denying defendant's motion to dismiss plaintiff's tort actions for alienation of affections and criminal conversation. On this appeal, we are again urged to abolish the tort of alienation of affections as well as the tort of criminal conversation.

Plaintiff Norton's complaint alleges that he and his wife, Sherry Norton, had three children during their marriage and that they lived happily and contentedly together until the summer of 1985. The complaint alleges that at that time defendant Macfarlane, a physician, developed an improper and undue influence over Sherry Norton and that he induced her by means of that influence to abandon and leave her husband, home, and children. The complaint further alleges that Macfarlane knew that Sherry Norton was plaintiff's wife and that he nonetheless committed adulterous acts with her. Defendant filed a motion under Rule 12(b)(6) of the Utah Rules of Civil Procedure to dismiss both of plaintiff's claims for failure to state a claim upon which relief can be granted. The trial court denied the motion, and we granted a petition for interlocutory appeal.

I. THE TORT OF ALIENATION OF AFFECTIONS

We again revisit the issue of whether marital consortium interests should be protected by the tort of alienation of affections. We affirmed the continued viability of that action in Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983). Defendant's argument in this case is that abolition of the tort is required by our subsequent decision in Hackford v. Utah Power Light Co., 740 P.2d 1281 (Utah 1987), and by the Legislature's adoption in 1987 of irreconcilable differences as a ground for divorce. See Utah Code Ann. § 30-3-1(3)(h) (1989). Defendant also asserts that the tort should be abolished for a number of other reasons and that Utah should join what he asserts is the "mainstream of American legal opinion" by abolishing the tort of alienation of affections.

In Nelson, a divided court sustained the viability of the tort of alienation of affections and rejected almost all the arguments defendant asserts here for abolishing that tort. We need not traverse again the same ground that was covered in Nelson. Defendant does, however, raise a few new arguments in contending that the tort of alienation of affections should be abolished. We address only those issues and rely on Nelson as an adequate answer to defendant's remaining arguments.

First, defendant argues that the Court should reassess the holding in Nelson in light of our intervening opinion in Hackford v. Utah Power Light Co., 740 P.2d 1281 (Utah 1987), which, again by a divided court, held that a spouse has no independent action against a tort-feasor for loss of consortium arising from a physical injury caused to the other spouse by the tortfeasor. Defendant insists that because Hackford denied protection to the consortium interests of a spouse while Nelson protected the consortium interests of a spouse, those cases are inconsistent and cannot logically coexist. Defendant fails, however, to recognize significant differences between those two cases.

Hackford did not address the issue whether the intentional tort of alienation of affections should be abolished. The issue in Hackford was whether one spouse had an independent cause of action for damages for loss of the other spouse's consortium because of a physical injury negligently inflicted on the other spouse by a third party. The Court held that the Married Woman's Act of 1898, which states in part that "[t]here shall be no right of recovery by the husband on account of personal injury or wrong to his wife," Utah Code Ann. § 30-2-4 (1989), barred a nonphysically injured spouse from suing on an independent cause of action for loss of consortium as a result of physical injury to the other spouse. See Hackford, 740 P.2d at 1288. Justice Zimmerman wrote the lead opinion in Hackford. Justice Howe wrote an opinion concurring in the result, which was joined by Chief Justice Hall. Justice Durham wrote a dissenting opinion, concurred in by the author of this opinion. A common rationale relied on by both Justices Zimmerman and Howe was that the Married Woman's Act and the doctrine of stare decisis precluded recognition of a cause of action for loss of consortium caused by the negligent conduct of a third party. Justice Howe also explicitly stated that the cause of action asserted in Hackford was derived from the primary, personal injury caused the other spouse, and therefore was distinguishable from a direct cause of action for loss of consortium by a tort-feasor's alienation of the affections of one spouse for the other. 740 P.2d at 1287. Hackford does not, therefore, stand for the proposition that consortium is an interest undeserving of judicial protection. Justice Durham's dissent argued that consortium was indeed a valid, protectible interest, and that injury to consortium interests gave a nonphysically injured spouse an independent cause of action for that loss. She contended that neither the Married Woman's Act nor the doctrine of stare decisis precluded such an action.

Defendant's argument that Hackford and Nelson are in irreconcilable conflict is correct only insofar as the result is concerned. They are not inconsistent in principle, however, because both support the proposition that the interests included in the term consortium are legitimate interests deserving of legal protection. Because the Court's refusal in Hackford to recognize a nonphysically injured spouse's cause of action for a loss of consortium arising from a physical injury to the other spouse was based on statutory construction and stare decisis, that case did not undermine this Court's ruling in Nelson. Nor does Hackford have any force in persuading us that the common-law cause of action at issue here should be abolished.

Furthermore, even if we were to reverse Nelson and abolish the tort of alienation of affections to achieve consistency of result with Hackford, we still would not bring consistency of result to Utah law in the sense that defendant thinks appropriate. The Utah Constitution provides civil damages for injuries to the consortium interests of familial love, companionship, services, and society that arise in wrongful death actions. Article XVI, section 5 of the Utah Constitution provides a cause of action for wrongful death and states that "the amount recoverable shall not be subject to any statutory limitation. . . ." Several Utah cases hold that injury inflicted on family relationships is a recoverable damage item in a wrongful death case under this provision. In Evans v. Oregon Short Line Railroad, 37 Utah 431, 108 P. 638 (1910), an action for the wrongful death of a spouse, this Court defined the consortium-type damages that are recoverable in such an action:

Whatever is allowed by the jury must therefore be by way of pecuniary recompense for the loss sustained by the wife and minor children, and must be strictly limited (1) to what the evidence shows the deceased contributed, and thus would probably have continued to contribute to them in money or other means by way of support and as an accumulation to his estate; and (2) to the money value of the injury suffered by the wife and minor children by reason of the loss of the advice, comfort, and society which they enjoyed prior to the death of the deceased and which would have been continued for their benefit.

37 Utah at 440, 108 P. at 641. In Jones v. Carvell, 641 P.2d 105 (Utah 1982), we explained further the nature of the losses recoverable in wrongful death actions by family members:

It is the loss of society, love, companionship, protection and affection which usually constitute the heart of the [wrongful death] action. Stated somewhat differently, this Court has stated that recovery may be had for "the loss of affection, counsel and advice, the loss of deceased's care and solicitude for the welfare of his or her family and the loss of the comfort and pleasure the family of deceased would have received . . ." In re Behm's Estate, 117 Utah 151, 159, 213 P.2d 657, 661, 40 A.L.R.2d 490, 496 (1950).

641 P.2d at 108 (citations omitted).

Neither defendant nor the dissenters in this case and in the companion case of Sharp v. Roskelley, 818 P.2d 4 (Utah 1991), contend that the Married Woman's Act can be construed to abolish the tort of alienation of affections. Furthermore, if stare decisis were given controlling application in this case, as it was in Hackford, the tort of alienation of affections would have to be sustained, since that tort has long been recognized as a valid cause of action in Utah. Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983); Sadleir v. Knapton, 5 Utah 2d 26, 296 P.2d 278 (1956); Wilson v. Oldroyd, 1 Utah 2d 362, 267 P.2d 759 (1954); Buckley v. Francis, 78 Utah 606, 6 P.2d 188 (1931).

The argument that the tort of alienation of affections is an historical anomaly is incorrect. Certainly, many of the common-law concepts concerning the nature of the marriage relationship and the jural rights of spouses with respect to each other and to family property are no longer accepted by any court. Few today would challenge the proposition that a sound marriage relationship is intrinsically deserving of protection from outside assaults made by those who use improper means to interfere with it. The obsolete procedural and property theories that once attended the tort, and are relied on by the dissenters as reasons for abolishing the tort, have long been abandoned; if applied today, they would be unconstitutional.

The argument for abolition of the tort of alienation of affections has been predicated largely on allegations of abuse of the tort by collusion of spouses against third persons for purposes of blackmail and the assertion that abuses are so prevalent that the tort should be abolished. Several legislatures did abolish the tort in the 1920s and 1930s on the ground that it had been abused, but public attitudes that created such a potential for abuse have changed considerably since then. Victorian attitudes toward sex in that era were widespread, making sex a taboo subject in public discourse. Even a whispered allegation of sexual misconduct could create a public scandal that could utterly ruin a person. In those circumstances, a threat of charging another with sexual misconduct, whether real or fabricated, was indeed a basis for blackmail. Even then, what abuse did occur, occurred more often in connection with the torts of breach of promise to marry and enticement than with the tort of alienation of affections. Certainly, there is no empirical evidence of abuse in this state, as far as we are aware. To a large extent, the basis for abuse has diminished as the Victorian attitudes toward sex have diminished and yielded to a much more frank and open attitude, as is evident from sexually explicit material regularly published in magazines, newspapers, television, movies, and books.

Furthermore, the tort of alienation of affections protects the marriage relationship from a variety of assaults by third persons, whether extramarital sexual affairs are involved or not. Sexual misconduct is only one means of destroying spousal affections. The gist of the tort is the protection of the love, society, companionship, and comfort that form the foundation of a marriage and give rise to the unique bonding that occurs in a successful marriage. See W. Keeton, Prosser and Keeton on The Law of Torts § 124, at 918 (5th ed. 1984); Jones v. Carvell, 641 P.2d 105 (Utah 1982). Cf. Evans v. Oregon Short Line R.R., 37 Utah 431, 108 P. 638 (1910). A fact that is often ignored in arguments favoring abolition of the tort is that the tort lies for all improper intrusions or assaults on the marriage relationship, whether or not they are associated with extramarital sex. Thus, in-laws, clerics, and others whose malicious interventions have destroyed marital bonds have been held liable for alienation of affections, even in the complete absence of any sexual aspect to the alienation. W. Keeton, Prosser and Keeton on The Law of Torts § 124, at 919 (5th ed. 1984). The scope of the tort was noted by the Iowa Supreme Court in Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978). It observed that of forty-one alienation of affections cases decided by that court throughout its history, twenty-two were prosecuted against immediate family members of a spouse and did not involve extramarital sexual relationships. The argument that the tort is unduly subject to the abuse of blackmail and collusion simply has no merit whatsoever in such cases.

A recent case of wrongful interference with marital bonds that had nothing to do with extramarital affairs is O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986). There, the Idaho Supreme Court held third parties liable for alienating a wife's affections by using a combination of severe psychological and religious pressures aimed directly at the marriage. The case was tried on an alienation of affections theory, and a verdict was returned for the husband. The Idaho Supreme Court, without much explanation, held that the tort of alienation of affections should be abolished, yet sustained the judgment for the plaintiff on an invasion of privacy theory. Although O'Neil is cited by authorities as one of three cases which have abolished the tort of alienation of affections, the fact is that the Idaho court sustained an action for the invasion and destruction of a marriage relationship, whatever the name appended to the tort.

Defendant also asserts that the tort should be abandoned because only a handful of states continue to recognize a cause of action for alienation of affections. Factually, that is incorrect. Approximately half the states have abolished the action for alienation of affections by legislative action, and if O'Neil v. Schuckardt is counted, three states have abolished all or part of the tort by judicial decision. See O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986); Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wn.2d 99, 615 P.2d 452 (1980). As noted, Idaho apparently retains part of the tort under the name of invasion of privacy.

Much more significant is the fact that the American Law Institute retains the tort in the Restatement (Second) of Torts § 683 (1977). That section provides:

One who purposely alienates one spouse's affections from the other spouse is subject to liability for the harm thus caused to any of the other spouse's legally protected marital interests.

Dean Prosser also agreed that the tort should be retained: "[Statutes which abolish alienation of affections] reverse abruptly the entire tendency of the law to give increased protection to family interests and the sanctity of the home, and undoubtedly they deny relief in many cases of serious and genuine wrong." W. Prosser, Handbook of The Law of Torts § 124, at 887-88 (4th ed. 1971). Although that statement does not occur in the fifth edition, it is no less true today, in our view. Certainly, the impetus for abolition that occurred in the 1920s and 1930s seems to have lost most of its force today.

Concededly, difficult jurisprudential problems exist with respect to the tort of alienation of affections, but they are not wholly unique to that tort. One such problem is the absence of an objective basis for determining the proper amount of damages for the emotional nonobjective aspects of consortium. However, that difficulty also exists with other torts and is not a valid reason for refusing to extend judicial protection to the marital bond. In Jones v. Carvell, 641 P.2d 105 (Utah 1982), we addressed a similar issue in a slightly different context and held that when an intangible injury is inflicted, the defendant should stand the risk of the indefinite standards for an award of damages rather than depriving the injured party of a remedy. In Jones, we stated:

Concededly, such losses are difficult to quantify and impossible to fit into a mathematical formula which translates them in any precise fashion into monetary values. But the alternatives raise an even more serious problem. To say that the law recognizes no loss for intangible injuries resulting from a wrongful death is repugnant to basic human values and flouts basic principles of justice. On the other hand, the law does not permit unfettered discretion in awarding damages. Experience demonstrates that juries and judges are able to translate the loss of a child's life into monetary values in a manner which has been generally accepted as reasonable and has avoided grossly disparate damage awards. To be sure, the making of such judgments is not easy and requires great understanding of those human values which can make interpersonal relationships so precious. Yet, the process, difficult as it is, must be tempered and confined so as to strike a just balance.

641 P.2d at 108. The same principle applies here. See also Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983).

Another difficulty with the tort of alienation of affections is identifying the existence and the strength of the various causative factors that weaken or destroy the bonds that are essential to the consortium interests protected by the law. Certainly extramarital relationships can and do destroy the bonds of mutual trust upon which a sound marriage is founded; but marriages also fail simply because of personal inadequacies of one or both of the spouses. A meretricious relationship may be only incidental to more primary causes, or it may itself be a primary cause, creating a sense of betrayal and unhappiness that leads to divorce or a loss of affection. When the causes of marital discord arise primarily from the personalities or inadequacies of the spouses, and not from the actions of a third person, the tort ought not to lie. When a third person is at fault for the breakdown of a marriage, the law ought to provide a remedy.

The difficulty lies in trying to determine when the conduct of a third party is the primary or controlling cause and when it is incidental. Nelson held that the conduct of the third party had to be the controlling cause of the weakening or destruction of the marriage. The Court stated:

First, the requirement that the defendant's acts must have constituted the "controlling cause" of the alienation of affections means that the causal effect of the defendant's conduct must have outweighed the combined effect of all other causes, including the conduct of the plaintiff spouse and the alienated spouse. For this purpose, a defendant is properly chargeable with the effect of mere acquiescence in the overtures of the alienated spouse where the defendant knows or has reason to know that such acquiescence will damage the marital relationship.

669 P.2d at 1219.

The author of the instant opinion filed a concurring and dissenting opinion in Nelson, stating that "it is not often that full responsibility for the breakdown of a marriage can be attributed with any great degree of assurance to one or the other of the parties, let alone solely to the conduct of a third person." 669 P.2d at 1222 (Stewart, J., concurring and dissenting). In an effort to provide a more workable guideline for determining whether a marriage breaks down primarily because of difficulties between the spouses based on their own personal characteristics or whether it breaks down primarily because of the acts of a third person, this author's opinion proposed a further limitation:

There are those in special positions of power, status, or authority who may illicitly use sex to satisfy their own passions or for otherwise improper ends. There are any number of such relationships, i.e., professors and students; physicians and patients; psychiatrists, psychoanalysts, or psychologists and clients; and employers and employees. Those who use positions of power or authority for the purpose of obtaining sexual favors and produce an alienation of affections between the one in an inferior position and his or her spouse, abuse and overreach any legitimate power they may have. In such cases, the consequence may be not only the breakup of one or perhaps two marriages, but also unforeseeable consequences in the future lives of the children from such marriages.

669 P.2d at 1222 (Stewart, J., concurring and dissenting).

We do not now, however, make the existence of such a relationship a necessary element in the proof of causation. We view the enumerated relationships, and others in which one may improperly use power, status, or authority to obtain improper and illicit sexual favors, as examples of what can be evidence of causation. When such relationships exist and are improperly exploited, the causation issue may be more easily resolved. It is, however, possible that the "subordinate" party may also use the relationship for his or her own ends. Certainly, the mere existence of such a relationship does not suffice by itself to establish causation in an action for alienation of affections, but it may be probative of the causation element if the "superior" party abuses the relationship for illicit sexual purposes. In any event, we make clear that the tort will lie, even if no such power, status, or authority relationship exists.

Whether or not there is such a relationship, we hold that a plaintiff must prove by clear and convincing evidence that it was the conduct of defendant that constituted a controlling cause of the injury to a spouse's consortium interests and that his or her conduct was not just incidental to other causative factors that destroyed or damaged the marriage or conjugal relationship.

The allegations in the complaint state that defendant's acts were the controlling cause of the breakup of the marriage. Plaintiff also alleges the existence of a special relationship and the abuse of it. On the allegations of the complaint, plaintiff has alleged a valid cause of action.

II. THE TORT OF CRIMINAL CONVERSATION

Defendant also asserts that this Court should abolish the tort of criminal conversation because the tort is even more subject to abuse than the tort of alienation of affections. The tort of criminal conversation was not at issue in Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983). Because the primary rationale for the tort of criminal conversation is not the protection of the marital relationship as such, but the right to exclusive sexual intercourse with a spouse, Hackford has no bearing on the issue we now address. The argument that this tort should be abolished is addressed, therefore, by this Court for the first time in recent years in this case and the companion case of Sharp v. Roskelley, 818 P.2d 4 (Utah 1991).

The tort of criminal conversation came into existence primarily because of the great importance that feudal society placed on insuring that the right of inheritance to property, title, and office descended to legitimate children only. Conflicting claims to titles, property, and estates could lead to discord and even violence. The law afforded a remedy designed to prevent illegitimate children by allowing a husband to sue another man who had intercourse with his wife. Stone, The Family, Sex and Marriage 316 (abridged ed. 1979). See also Nelson v. Jacobsen, 669 P.2d 1207, 1222 (Utah 1983) (Durham, J., dissenting).

In 1857, the tort of criminal conversation was abolished in England by the Matrimonial Causes Act. In Cahoon v. Pelton, 9 Utah 2d 224, 342 P.2d 94 (1959), this Court addressed for the first time the question of whether the tort of criminal conversation should be recognized in this state. The Court rejected the common-law theory that adultery was actionable as a trespass on a man's wife. Instead, the Court held that adultery, or the tort of criminal conversation, was actionable because of "the exclusive right of either spouse to intercourse with the other." 9 Utah 2d at 231, 342 P.2d at 98. The Court stated that a "person who violates this right, though with the consent or even enticement of the guilty spouse, is liable in damages to the innocent spouse. It is similar in some respects to the right against alienation of affections but is stronger in that it requires the commission of adultery in violation of the criminal law." 9 Utah 2d at 231, 342 P.2d at 98-99.

Whatever the underlying rationale, damages, including punitive damages, may be awarded against one who engages in an extramarital affair with the spouse of another, even if there has been a complete and irreparable loss of affection and companionship between the marriage partners before the affair, and even if the husband and wife are only awaiting the entry of a final divorce decree. 1 F. Harper F. James, The Law of Torts § 8.3, at 612 (1956). In truth, the tort is essentially a tort of strict liability. The tort is not designed to indemnify the aggrieved spouse for any loss to the marriage relationship. Indeed, a damage award may well be a complete windfall to the plaintiff. Moreover, there are no defenses, even if the offending spouse was the aggressor and wholly responsible for enticing the defendant into the act. A damage award in such circumstances may simply be a reward for greed and vindictiveness, which could destroy whatever possibility there might be of restoring the marital relationship.

Furthermore, the tort may impose large punitive damages on one of two parties to a mutual act, even though the one held liable under the law was not the aggressor and was less culpable. Whether the offending spouse is the initiator, or intercourse occurs because of the mutual desire of both parties, or the offending spouse is wholly passive, the offending spouse always acts consensually. Thus, despite the inevitable contributing fault of the offending spouse, the tort imposes total liability for the act of two people on only one of them.

Because it is both unfair and bad policy to allow a non-offending spouse who has not been damaged to recover damages for the adultery of the other spouse and a third person when that act does not affect the marital interest, the tort serves no useful purpose. It may even be counterproductive if it is used for vindictive purposes by a spouse whose marriage has failed for reasons attributable to the fault of that spouse. Because the law provides an adequate remedy when the marital bonds and relational interests are damaged by illicit sexual intercourse, we hold that the tort of criminal conversation is unnecessary and should be abolished as a tort separate and apart from the overlapping tort of alienation of affections.

The only reason both torts have continued to exist in modern times is simply historical. To the extent that the tort of criminal conversation provides a cause of action for adultery when the marriage commitment is dead, it serves no useful purpose in awarding damages. If the marriage commitment of the spouses is not dead, the tort of alienation of affections provides an adequate legal remedy.

In abolishing criminal conversation, we join a number of other courts that have done the same. Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980); Feldman v. Feldman, 125 N.H. 102, 480 A.2d 34 (1984); Lynn v. Shaw, 620 P.2d 899 (Okla. 1980); Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976); Hunt v. Hunt, 309 N.W.2d 818 (S.D. 1981); Irwin v. Coluccio, 32 Wn. App. 510, 648 P.2d 458 (1982). The state of Louisiana, a civil law state, refused to recognize the tort several decades ago. Moulin v. Monteleone, 165 La. 169, 115 So. 447, 448-49 (1927). See also Note, The Case for Retention of Causes of Action for Intentional Interference with the Marital Relationship, 48 Notre Dame Lawyer 426, 433 (1972) ("To allow recovery on the basis of the sexual conduct alone without proof of a resulting diminution of affections or similar loss would leave the door open to flagrant injustices.").

We note in passing that abolition of the tort of criminal conversation by this Court does not violate Article I, section 11 of the Utah Constitution, the open courts provision. That provision insures a legal remedy for injury to person, property, or reputation. The purpose of the tort of criminal conversation is to protect the right of marital exclusivity in sexual intercourse with one's spouse. Adultery may constitute an injury to one's marital relationship but not to one's own person. However, even if it could be so construed, abolition of criminal conversation does not violate the open courts provision. Berry v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah 1985), made clear that Article I, section 11 does not prevent the abolition of obsolete causes of action. Certainly, alienation of affections provides an effective and reasonable alternative remedy, in any event.

The argument that this Court should leave the issue of abolishing the tort of criminal conversation to the Legislature is an argument for abdication of judicial responsibility, which we reject. The tort of criminal conversation was created by the courts through the evolutionary processes of the common law. It is the responsibility of the judiciary to examine those causes of action which it has created, to alter them when appropriate, and to abolish them when necessary. The basic evolutionary provisions of the common law have not been repealed. Judicial power to alter, abolish, and create causes of action does not, of course, restrict the right of the Legislature to have the last word with respect to tort law, at least insofar as the Legislature does not transgress constitutional limitations on its powers. See Utah Const. art. I, § 11. The New Hampshire Supreme Court, confronted with this same argument, aptly observed:

As a common-law tort, the action for criminal conversation is a creation of the judiciary. Consequently, "it is the duty of the judiciary to examine it and make such changes as justice requires when the legislature has chosen not to act." Briere v. Briere, 107 N.H. 432, 434, 224 A.2d 588, 590 (1966). The legislature expressed its will by enacting laws, not by failing to do so. Furthermore, its inaction could be motivated by its assumption that if a judicially developed rule is unjust the courts will overrule it." Merrill v. Manchester, 114 N.H. 722, 728, 332 A.2d 378, 382 (1974). It follows that the general rule of deference to the legislative intent has no application here, where the legislature has expressed no intent that the cause of action be retained.

Feldman v. Feldman, 125 N.H. 102, 104-105, 480 A.2d 34, 35 (1984).

The order of the trial court sustaining the tort of alienation of affections is affirmed. The order denying the motion to dismiss with respect to the tort of criminal conversation is reversed.

Remanded for further proceedings.