¶1(concurring specially in part, and concurring in result in part).
¶2I would agree with the majority that the tort of criminal conversation has outlived its usefulness and should be abrogated, except as it may be shown as an essential element in breaking up a once stable marriage in an alienation of affections suit.
¶3*823The only defenses to an action for criminal conversation are consent of the injured party and the statute of limitations. Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Fadgen v. Lenkner, 496 Pa. 272, 365 A.2d 147 (1976). No tort action should be allowed which does not afford a defendant the opportunity to interject logically valid defenses. The evidence that there was “no love in the marriage” as far back as 1975; that the appellee’s husband had engaged in adulterous relations with other women five years before his encounter with the appellant; that the appellee had engaged in adulterous conduct with another man for some months before the conduct complained of between her husband and appellant; and that there was simply no causal relation between the appellant’s conduct and the break-up of the marriage are all immaterial in an action for criminal conversation. This leads to an unconscionable result for this appellant, as well as any other defendant, and is completely foreign to the concept of tort law as we have known it in this state. For the reasons stated above, I would abolish the common-law tort action for criminal conversation.
¶4However, I would not abolish the tort action for alienation of affections. In fact, if adultery was not a proper element in a suit for alienation of affections, I would be loathe to strike the tort of criminal conversation from the laws of this state. These actions have traditionally been brought in one lawsuit and the same conduct used as evidence to prove both causes of action. Thus, we are not completely abolishing the effect of adulterous conduct upon a marriage when we abrogate the action for criminal conversation.
¶5Both the action for alienation of affections and criminal conversation, while common law in nature, have long been recognized as valid tort actions by our legislature and by this Court. SDCL 20-9-6; 15-2-13(5) and 15-17-12. See Morey v. Keller, 77 S.D. 49, 85 N.W.2d 57 (1957); Pearsall v. Colgan, 76 S.D. 241, 76 N.W.2d 620 (1956); Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423 (1936); Boyd v. Strickland, 58 S.D. 501, 237 N.W. 729 (1931); Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (1917); and Roberts v. Jacobs, 37 S.D. 27, 156 N.W. 589 (1916). While I agree that criminal conversation should be abolished, I am convinced that the tort of alienation of affections should be preserved until repealed by legislative action. It is one thing to abolish an action in tort which is devoid of defenses and unjust. It is quite another to abolish a long-standing legislative and judicial intention to preserve the sanctity of marriage by providing a civil remedy, and where reasonable and just defenses are available to a defendant.
¶6Finally, because we happen to be living in a period of loose morals and frequent extramarital involvements is no reason for a court to put its stamp of approval on this conduct; and I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.
¶7I would concur in the majority opinion’s result in this action for alienation of affections, because the marriage was already hopelessly dissipated before the alleged conduct of this defendant; there was no causal connection between appellant’s conduct and the break-up of the marriage; and there was no affection to alienate. I would hold that the trial court erred in not granting appellant’s motion to dismiss the alienation of affections suit for lack of evidence to sustain the verdict.
¶8I am authorized to state that MORGAN and FOSHEIM, Justices, join in this concurrence in part and concurring in result in part.