Because of a commitment to the concept of individual culpability, holding someone responsible for the wrongdoing of another is a relatively rare occurrence in American jurisprudence. However, this Article reveals a significant, yet largely unacknowledged, source of such liability: conjugal liability. Conjugal liability occurs when one spouse or intimate partner is held legally responsible, either directly or indirectly, for their partner’s wrongful acts. Conjugal liability penalizes one intimate partner for the actions of the other in a vast array of legal fields and domains, ranging from tort, criminal law, property and employment law, to creditor’s remedies, bankruptcy, and tax law.
Within these domains, conjugal liability is deployed for a variety of laudable purposes, such as the prevention of harm to third parties, the deterrence of drug or other criminal activity, and the expansion of creditor’s remedies. However, conjugal liability is a deeply problematic way of achieving these goals. First, in operation, it is profoundly gendered, most often holding wives and girlfriends responsible for the wrongdoing of their male intimate partners. Second, in many instances, conjugal liability is unmoored from traditional notions of culpability, and is arguably a form of guilt by association. Third, conjugal liability flies in the face of the constitutional right to freedom of intimate association. Because of these troubling features, conjugal liability should be recalibrated so as to ensure an actual connection between an intimate partner and an underlying wrong, as opposed to merely a connection between an intimate partner and a wrongdoer.Swan-64-4