“Intentional sex torts”

An interesting post popped up today at Feminist Law Profs. See Intentional sex torts. In that post, Prof. Deana Pollard Sacks discusses the “fraudulent inducement of sex” issue. (Discussed here in Pickup Line Quagmire in Massachusetts, March 10, 2008).

Prof. Sacks argues “it is particularly important to protect women’s rights to protect their own bodies, not just against physical violence, but against fraudulent inducement of sexual decisions and all of the dangerous consequences that can result from a lack of truly informed consent to sexual relations. (source)” She then directs the reader to her forthcoming article on the subject. (abstract)

The abstract of that article, in part:

The law’s contemporary “caveat emptor” approach to cases of sexual autonomy infringement is inappropriate because it departs from fundamental principles of intentional tort doctrine. In addition, the current law is dangerous because it supports “false” norms that sexual misappropriation is acceptable. Current law fails to protect personal privacy and public health, and fails to engage the law’s potential to influence social conduct positively.

Intentional sex tort law should be reformed so that it is consistent with prevailing sexual norms and principles of intentional tort doctrine. Allegations of tortious interference with sexual autonomy should be analyzed consistent with traditional battery jurisprudence bearing on the issues of intent to offend and offensive contact. Exceptions to the defense of consent should also be adopted. The fraud exception should apply, utilizing established principles of materiality and justifiable reliance. (source)

I will have to read her article before offering a full critique. However, I have read her article Sex Torts, 91 Minnesota Law Review 769 (2007). What I found there, coupled with the abstract of her new article, seems to suggest a road to hell paved with good intentions.

Expanding tort law to cover dishonest sexual encounters is a horrifying proposition. Although Professor Sacks seems well intentioned, if her theories take hold, it will mean the end of casual sex as we know it.

Despite the consequences, we have to be left to be human, to make our own choices, and to accept responsibility for the consequences — even if that means that some immoral, abhorrent, and even disgusting behavior will leak through the sieve of our legal system. There simply does not need to be a law to cover every bit of sketchy behavior. For as long as we live and love, someone will lie about their feelings to someone else. Hearts will break. Men and women will lie to each other. Men and women will sleep with each other for the wrong reasons. I’m not simply arguing that “boys will be boys.” I am arguing that this is the yin to the yang of love, passion, and ecstasy.

Every time you meet someone or fuck someone, you are taking a risk. That’s part of the thrill!

You never know where it is going to lead. Will this end in complete heartbreak? Will this be the most mind-blowing sex ever? Is this someone I’m going to grow sick of or grow old with? If we had it all planned out from step one, our existence would be drab indeed.

Using tort law to attempt to criminalize an integral part of the human condition is simply too Orwellian to tolerate.

Not to mention, I’m certain that this expansion would not be gender-neutral, nor would it be easy to control its mission creep.

If we let tort law creep into our everyday sexual relationships, will young men be able to sue the ugly friend for tortious interference? You know, you go out for the night, you bump into that girl you flirted with a few days ago. The two of you hit it off. The two of you decide to go home with each other, and BAM! Out of nowhere comes her ugly friend who whines “I wanna go home, and you HAVE to come with me! We prommmmmissed, it was a giiiirls night!

I wonder how the legal academy would respond if I published a law review article, Cock-blocking as tortious interference with sexual relationships.

The bottom line is that you need to trust someone before you have sex with them. He might be lying about his HIV status, his bank account, whether he loves you, whether she is married, whether she will respect you in the morning, whether this was because he finds you sexy or whether she simply lost a bet. If you can’t trust the person you are about to have sex with, then either don’t have sex with them or accept the personal responsibility for the consequences. If you are worried about disease transmission, then use a condom! Condoms aren’t 100% effective? Well neither are human emotions. Nevertheless, you can manage your own risks without crying to a lawyer after you find out that your sexual partner wasn’t all he said she was.

Here is the equation, if you are too simple minded to come up with it yourself:

Step 1: Ask yourself, “do I trust this person 100%?” If yes, then act accordingly.
Step 2: If the answer is “no,” then calculate the risks (pregnancy, heartbreak, no movie part for you, AIDS, crabs, etc.).
Step 3: If that risk is worth it, then proceed without a condom.
Step 4: If that risk is not worth it, then divide the risk by the success rate of condoms.
Step 5: If the risk has been sufficiently reduced by the condom, then have sex with a condom.
Step 6: If not, then leave or settle for less than full on sex.
Step 7: Regardless of your decision – TAKE PERSONAL RESPONSIBILITY FOR YOUR DECISION!

We have enough problems with the religious right trying to squeeze government under our bedroom doors. Don’t let law professors push tort lawyers under our sheets too.

Other posts and sources on this issue:

  1. Earlier Post from the Legal Satyricon: Pickup Line Quagmire in Massachusetts – my post on a Massachusetts legislator’s attempt to criminalize a deceitful pick-up. Please read this before whining about my alleged perspective.
  2. Women’s Space: “Intentional Sex Torts”: Making Laws That Work for Women and What Happens to Feminist Attorneys Who Try. What happens to them is that their ideas are challenged in the marketplace of ideas — much to the chagrin of those who believe that any liberal ideas should simply cruise, unchallenged, into criminal and tort law. Aside from the melodrama in the title, this is a reasonable disagreement with my point of view. The comments? Not so much. They are actually pretty comical. I’m described as a “pimp over there. <font sarcasm Should I ignore it, or should I file suit against “women’s space” for failing to take down the offensive posts? Can anyone think of a firm that might take such a case pro-bono? /end sarcasm font>
  3. Here is a great feminist critique of Professor Sacks’ proposal. Above the Law (comments section) (Comment to Above the Law)
  4. Con: Geeklawyer: Stupid cunts. Although this guy agrees with my argument (presumably), I don’t accept him as an ally. In fact, this kind of name-calling is precisely what the forces of evil want as a reaction. That way they can wave around just such an argument as an example of their martyrdom and take the focus off of the real issue — the horrible idea.
  5. Simple Justice, Stealing sex, the new frontier? I think that this post improves upon my off-the cuff post — and actually does a better job of articulating what I wanted to say.
  6. The Faculty Lounge: Pollard on Intentional Sex Torts. Doesn’t really say much, but at least comments appear to be unfiltered.


UPDATE

A few days ago, I wrote a post on “Intentional Sex Torts.” This created some high pitched shrieking that I hadn’t actually read the article. The article is here, and it is worse than I thought.

However, I did find some good scholarship on this issue. Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape. I don’t agree with this paper’s conclusions, but the analysis of “rape by fraud” is far more reasonable and well researched than the Intentional Sex Torts article.

10 Responses to “Intentional sex torts”

  1. Lawyer Chick says:

    I wandered over from Above the Law… so I haven’t read your blog before, and it may well be you’re being completely sarcastic and you actually do recognize why it’s a good idea to make it a tort to fraudulently induce people into taking risks with their health and lives (e.g., if a bungee operator tells me the cords are in perfect, safe working order, when in fact they’re frayed and about to break, he has fraudulently induced me to take risks with my life I would not have if I had known the truth, and you better believe that’s actionable). But just in case you aren’t being sarcastic, allow me to offer a suggested alternative point of view.

    You’re focusing on the apparently frightening notion that men will have to be more upfront with the women they sleep with (what a concept!) You seem to forget that, your unsupported assumptions about gender neutrality notwithstanding, women would also have to be honest. That means if she says she’s on birth control and she lied — how about that, you are off the hook. She tells you she’s disease-free and she gives you AIDS, she’s covering your medical bills the rest of your life.

    This obviously would not make every single lie unlawful, any more than every single lie a salesperson tells in inducing a sale is unlawful. You’re forgetting the key inquiries in any fraud case: materiality and objectively reasonable reliance. And, fear not, my friend — most judges — you know, the ones who get to decide if that issue even gets to a jury — are men. You have very little to worry about.

    And, come on. Your cockblocking analogy, while humorous, completely misses the point. I have the right to make informed choices about my health. I don’t have the right to sleep with any random cute guy who makes conversation with me at the bar. These two are nowhere near the same thing.

  2. You make some really good points.

    One of the weaknesses in my blog writing is that I foolishly presume that everyone has read my prior posts… even though I linked to my prior post on this, I can’t realistically expect that everyone will click on it.

    So, take a look at this post. I do agree that perhaps there should be liability for someone who lies about a disease. However, I believe that current tort law takes care of that — we don’t need new laws to handle it.

    I disagree with your birth control analogy. In most states, if you are the dad, that’s it… you are on the hook, whether the woman lied about birth control or not. And, I agree with that. If a guy screws a girl, then he needs to take responsibility for the outcome — whether she lies or not.

    Whether it is a herpes infected man lying to his potential coital partner or a fertile woman lying that she is sterile, where is the personal responsibility in whining to the courts to intervene?

    Sex is fun. Sex feels good. Sex is natural. Everyone should have more of it. However, with sex comes responsibility. If you bang somebody that you can’t trust, then YOU have made a stupid choice. They may have been sleazy, scummy, and unethical, but YOU exercised bad judgment. I don’t think that the courts belong in the middle of a “fucker’s remorse” suit.

    Your third paragraph would be great — if only everyone felt the same way. You know full well that if you give this kind of law an entree into our bedrooms, it will never stop at its intended destination.

    Finally… I still don’t see how your comment about the cockblocking analogy is on target. You do have the right to make an informed choice about your health. I agree. So if you are visiting a prostitute (I think that should be legal) and he lies about his disease status, he should pay.

    On the other hand, if you simply hook up with a random stranger (or even someone you *think* you know well) and they are a scumbag… well, I feel sorry for you, but I don’t think that *my courts* should be burdened with helping you seek redress for your own stupid choices. You could have kept your legs closed that night, you didn’t, tough for you.

    With freedom comes personal responsibility. You want the freedom to fuck any willing partner? You should have it! But, you need to take responsibility for your choices.

    When we take away responsibility, we also take away freedom.

    -MJR

    PS – I hope that this didn’t come off as sarcastic. I appreciate the fact that you obviously strongly disagree, but you were very civil about it. I hope that my intent to be civil in return is clear… but when talking about this particular subject, sometimes that can get lost in the necessary terminology. If so, give me the benefit of the doubt, please.

  3. Lawyer Dude says:

    “I don’t have the right to sleep with any random cute guy who makes conversation with me at the bar. ”

    You don’t? If he’s over the age of consent and consenting, I thought you did. You don’t have the right to rape any random cute guy, but sleep with, you do.

  4. gigittygigitty says:

    I completely agree that it would be ludicrous and very dangerous to attempt to expand existing tort law to cover.. what?? Fraudulent inducement to sex? This creates a total clusterfuck. “He wasn’t who I thought he was..” BAM. Lawsuit. “He said he was single, so I slept with him… but it turns out that he has a girlfriend” BAM. Lawsuit. I mean, really. What the fuck?

    Some things fall outside the realm of tort law. If you open up this realm to tort, you can’t do so selectively. It’s an onslaught of bullshit.

    Ironically, this proffered “feminist” idea is actually quite otherwise. It assumes that women cannot take care of themselves.. cannot be good judges of character… can not make wise decisions re sexual partners….

    What about fraudulent inducement to love.. how about that next?

  5. Chef Monoco says:

    I actually agree with the instinct that it is a BAD idea to allow tort law to regulate sexual relationship in this way.

    All these “choice” arguments are ridiculously hackneyed, and I can’t think of a good law review article or judicial opinion that revolves around such an amorphous, easily abused, and unclear concept. You could follow the “freedom of choice” train to absolve any number of negligent or tortious actions.

    For example, a person who wants to sue a bungee operator who lies about the condition of the cords. It certainly was my “choice” to believe the bungee operator. I could have chosen someone I “trusted” (step one), taken adequate protective measures (step two) and taken personal responsibility (step 7).

    The main purveyor of the “choice” modality of argument has always been vendors of harmful goods, especially cigarettes. The Marlboro Man was invented in order to make smokers feel like they were making their own “decision” to addict themselves to a drug (which, of course, controls the smoker in any realistic world view).

    Policy choices revolve around so much more than these lame “choice” arguments. I actually kind of like your “thrill” argument — of course, I assure you that “thrill levels” would go up if tort law withdrew from the extreme sports market. Thrill levels would go up at work if harassment were allowed. And Putney would have had a gay old time if tort law hadnt prevented him from pulling that chair out from Vosberg. So what is the difference?

    Maybe the difference (ie, the explanation for our instinct that this is a stupid reform) is that there are no damages! If I knowingly get a lady into bed promising to date her, but without any intention, her damages are arguably only emotional. Generally, the public is uneasy about torts where the damages are purely emotional (hence, IIED has an “objectively outrageous” requirement).

    Now, maybe she would argue that she was expecting more dates which have a cash value! But, if the law were to enforce that bargain, it would imply that she offered the sex as legal consideration for future paid dates, which is a crime (prostitution). So, maybe we are uncomfortable with the idea of damages being paid for “intentional sex torts” because it implies a cash value equivalent to sex . . .

  6. WL says:

    Since nobody commented on it either here or on the earlier post, may I just say that the pic of Quagmire is the absolutely perfect screencap to go with this topic. =)

    But seriously, I agree, what the fuck? I thought we wanted *less* government meddling in our bedrooms. I can just imagine: Judge Judy or some other know-it-all presiding over sex court at 7am after plaintiffs do the walk of shame down to the county clerk’s office. One step forward, two steps back…

  7. moon23 says:

    Men and Women both lie in their interpersonal relationships. Not just the sexual ones! Would this cover friendships too? Or what about women who wear make-up in order to bed partners?

    As far as I can tell this train of thought fails to draw the difference between a business transactions e.g. the Bungee jumper analogy and a human relationship.

    It’s amongst one of the most stupid things i’ve heard in a long while, and it does feminism an injustice.

  8. Tara says:

    There was a bar question on whether a man’s representations to a woman in ‘procuring’ sexual intercourse could give rise to a common law criminal charge of rape by vitiating her consent.

    Totally threw me off my game for at least 2 minutes because all I could think was “damn, Prof. XXX blawged about that.”

  9. Hugo B says:

    Maybe it’s because I’m getting old…but the font size for all the comments is miniscule!

    I can’t read a damn thing!

    HELP!

  10. I know, me too!

    If you’re on a PC, you can zoom in by holding CTRL and spinning your mouse wheel.

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