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:

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. 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> Here is a great feminist critique of Professor Sacks’ proposal. Above the Law (comments section) (Comment to Above the Law) 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. 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. 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.

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