At Debs’ place.  The woman is tireless!  And the carnival is amazing, as usual.

Thanks for all you do, Debs!

Heart

I read an interesting article last night written by a newspaper reporter in Oregon.  He had interviewed an old friend of Hillary Clinton, Jean Houston, following Clinton’s campaign appearance in Eugene.  Clinton had sought out Houston along with Mary Catherine Bateson for support and counsel during crises around Bill Clinton’s presidency, the failure of her own health care initiative in 1994 and her ongoing intense vilification by the media. 

This especially caught my eye:

The biggest change in human history over the last 5,000 years, Houston said, “is the rise of the feminine . . . slowly, but surely, to full partnership with men over the whole domain of human affairs. This is shifting everything.” This was what Houston and Bateson tried to convey to Clinton in 1995 when they helped her understand why, quite apart from political strife, she was the object of so much loathing.

 ”It’s the fear of the ‘rising feminine,’ ” Houston said.

The article goes on:

“The current election is a look at archetypal structures,” said Houston, a handsome 71-year-old with a broad smile. Sen. Barack Obama (D-Ill.) has “a shamanic personality, of course,” she said. Clinton is “the classical wise woman or priestess, if you will.” The presumptive Republican nominee, Arizona Sen. John McCain, she added, is “the warrior.”

On Clinton’s friendship with these women:

In her 2003 memoir, “Living History,” Clinton [wrote]  ”As much as I loved my husband and my country, adjusting to being a full-time surrogate was difficult for me. Mary Catherine and Jean helped me better understand that the role of first lady is deeply symbolic and that I had better figure out how to make the best of it.”

 …Clinton later enlisted Houston and Bateson to help craft her first book, “It Takes a Village,” which became a bestseller.

 Woodward wrote that Houston tried to steer Clinton away from her “warrior mode” and “the need to have enemies who could symbolically be singled out to embody the opposition.”

 ”It’s a shame the warfare model is still there,” Houston said. “If she could have moved to the next level, she would be the next president.”

Houston says Clinton has difficulty “portraying her authentic self”:

“She is funny, hilarious, generous, warm, given to acts of kindness that are extraordinary,” Houston said. “She is a deep woman, not just a very bright woman. But she is part of a dying breed, an archaic sensibility.”

To be very clear, Houston’s approach to spirituality is not one that resonates with me.  I do think, though, that she may be onto something when she describes what might be the archetypal significance of the people who have emerged as frontrunners in the 2008 campaign.   I think she’s right about the fear of the “rising feminine,” though I think it might work as well to say that people are afraid of the success of feminism and of the powerful women who embody its successes. 

Clinton’s friendship with Houston and Batesman ended when journalist Bob Woodward’s uncharitable and mean-spirited characterizations of Houston having guided Clinton through imaginary conversations with Eleanor Roosevelt, with whom Clinton identified very closely and whom she admired, resulted in new and improved rounds of Clinton-bashing.  It’s not at all hard for me to imagine the value these imagined conversations might have had to Clinton; it’s also not hard for me to imagine how Woodward and others might have delighted in turning this into  ”Wackygate”.  There’s nothing wacky about the use of imagination, creativity, art or ritual.  It’s unfortunate that Woodward’s and others’ sleazeball tactics worked and that Clinton severed her relationship with these women friends, who cared about her.  That Clinton sought out woman healers during one of the darkest seasons of her life changes the way I think of her and imagine her in a way that is, for me, very positive.  During this time of her friendship with these women, she gave her powerful and memorable speech in Beijing in which she spoke passionately about the problem of violence against women and girls throughout the world.  She said, in part:

Women comprise more than half the world’s population. Women are 70% percent of the world’s poor, and two-thirds of those who are not taught to read and write.

Women are the primary caretakers for most of the world’s children and elderly. Yet much of the work we do is not valued - not by economists, not by historians, not by popular culture, not by government leaders.

At this very moment, as we sit here, women around the world are giving birth, raising children, cooking meals, washing clothes, cleaning houses, planting crops, working on assembly lines, running companies, and running countries.

Women also are dying from diseases that should have been prevented or treated; they are watching their children succumb to malnutrition caused by poverty and economic deprivation; they are being denied the right to go to school by their own fathers and brothers; they are being forced into prostitution, and they are being barred from the bank lending office and banned from the ballot box.

Those of us who have the opportunity to be here have the responsibility to speak for those who could not.

As an American, I want to speak up for women in my own country - women who are raising children on the minimum wage, women who can’t afford health care or child care, women whose lives are threatened by violence, including violence in their own homes.

I want to speak up for mothers who are fighting for good schools, safe neighborhoods, clean air and clean airwaves; for older women, some of them widows, who have raised their families and now find that their skills and life experiences are not valued in the workplace; for women who are working all night as nurses, hotel clerks, and fast food cooks so that they can be at home during the day with their kids; and for women everywhere who simply don’t have time to do everything they are called upon to do each day.

Speaking to you today, I speak for them, just as each of us speaks for women around the world who are denied the chance to go to school, or see a doctor, or own property, or have a say about the direction of their lives, simply because they are women. The truth is that most women around the world work both inside and outside the home, usually by necessity.

We need to understand that there is no formula for how women should lead their lives. That is why we must respect the choices that each woman makes for herself and her family. Every woman deserves the chance to realize her God-given potential.

We also must recognize that women will never gain full dignity until their human rights are respected and protected.

Our goals for this Conference, to strengthen families and societies by empowering women to take greater control over their own destinies, cannot be fully achieved unless all governments - here and around the world - accept their responsibility to protect and promote internationally recognized human rights.

The international community has long acknowledged - and recently affirmed at Vienna - that both women and men are entitled to a range of protections and personal freedoms, from the right of personal security to the right to determine freely the number and spacing of the children they bear.

No one should be forced to remain silent for fear of religious or political persecution, arrest, abuse or torture.

Tragically, women are most often the ones whose human rights are violated.

Even in the late 20th century, the rape of women continues to be used as an instrument of armed conflict. Women and children make up a large majority of the world’s refugees. When women are excluded from the political process, they become even more vulnerable to abuse.

I believe that, on the eve of a new millennium, it is time to break our silence. It is time for us to say here in Beijing, and the world to hear, that it is no longer acceptable to discuss women’s rights as separate from human rights.

These abuses have continued because, for too long, the history of women has been a history of silence. Even today, there are those who are trying to silence our words.

The voices of this conference and of the women at Huairou must be heard loud and clear: It is a violation of human rights when babies are denied food, or drowned, or suffocated, or their spines broken, simply because they are born girls.

It is a violation of human rights when women and girls are sold into the slavery of prostitution.

It is a violation of human rights when women are doused with gasoline, set on fire and burned to death because their marriage dowries are deemed too small.

It is a violation of human rights when individual women are raped in their own communities and when thousands of women are subjected to rape as a tactic or prize of war.

It is a violation of human rights when a leading cause of death worldwide among women ages 14 to 44 is the violence they are subjected to in their own homes.

It is a violation of human rights when young girls are brutalized by the painful and degrading practice of genital mutilation.

It is a violation of human rights when women are denied the right to plan their own families, and that includes being forced to have abortions or being sterilized against their will.

If there is one message that echoes forth from this conference, it is that human rights are women’s rights - and women’s rights are human rights. Let us not forget that among those rights are the right to speak freely - and the right to be heard.

Anyone who reads my blog regularly knows I have never supported Hillary Clinton’s candidacy (nor do I support Obama’s and certainly not McCain’s; I support only my own, and if not my own, then Cynthia McKinney’s), but I’m feeling Clinton very deeply these days.  I think she has been made to be the focus of, and to bear up under, free-floating misogynist, sexist resentments and fears of decades and even centuries.  The way she has been imagined and treated in this campaign does not bode well,  not only for Clinton’s candidacy but for feminism, for the lives of girls and women everywhere.

Note:  I’d like for this thread not to become about the Presidential campaign itself, with people stumping for their favorite and trashing their non-favorite.  I’d rather we focus more on why the candidates have the appeal to the American public that they do or do not have. 

Heart

Nuala O’Faolain, journalist, feminist, author of several books, and long-time partner of feminist radical Nell McCafferty, also a journalist and Northern Ireland civil rights activist, died May 9 in Dublin of lung cancer.  She was 68. 

O’Faolain learned she had cancer suddenly.  She’d worked out at the gym and noticed her leg was dragging and didn’t seem right.  She learned she had brain tumors and inoperable cancer later that day at the emergency room of a hospital in New York.

O’Faolain grew up poor, one of nine children. She was described as out of control as a young girl and was kicked out of convent school at 14 for her rowdy habits, including sneaking out at night with women and men much older than her to go to dance halls.  Her parents managed to scrape together enough money to send her to boarding school where she began to be academically successful, going on eventually to college and post-graduate work at Oxford University. 

O’Faolain came across the international radar in part as a result of an Irish television program she and other women produced, “Plain Tales”, where ordinary women talked about their lives.  This was the first television program in Ireland produced entirely by women.  O’Faolain went on to write newspaper columns and finally to publish several best-selling books, including the widely acclaimed Are You Somebody?  Her writing is characterized by a sometimes brutal honesty and deep understanding of women’s isolation and loneliness.

Her parting gift was an interview with Marian Finucane in which she talked about her life and facing her own death with the same merciful, beautiful starkness that characterized all of her work and writing.  She didn’t believe in God or an afterlife and felt devastated suddenly face to face with her conviction that all she had learned, created, written would come to an end with her death. 

NO’F: …I actually don’t know how we all get away with our unthinkingness. Often last thing at night I walk the dog down the lane and you look up at the sky illuminated by the moon and behind the moon the Milky Way and, you know, you are nothing on the edge of one planet compared to this universe unimaginably vast up there and unimaginably mysterious.

And I have done that for years, looked up at it and given it a wink and thought ‘I don’t know what’s going on’ and I still don’t know what’s going on, but I can’t be consoled by mention of God. I can’t.

MF: Would you like it?

NO’F: No. Oh no, I wouldn’t. If I start doing that something really bad is happening to my brain, though I was baptised and I remember my First Communion and I went to Catholic schools and I was in the legion of Mary and I tried to stick to my pledge.

And though I respect and adore the art that arises from the love of God and though nearly everybody I love and respect themselves believe in God, it is meaningless to me, really meaningless.

MF: The reason I asked you is because it is a source of comfort for many people?

NO’F: Well, I wish them every comfort, but it is not even bothering me. I don’t even think about it. I have never believed in the Christian version of the individual creator… how could I know far too many Buddhists and atheists and every kind of thing?

Let poor human beings believe what they want, but to me its meaningless. I waited on the radio the other day to hear poor John O’Donoghue knowing that he is very important to many people, but to me it is utterly meaningless to someone it isn’t meaningful to.

And yet I want to mention one thing that you might play at the end, particularly for dying people, but I picked up little bits here and there about Ireland, largely at the Merriman Summer School, which is one of the great things in my life, a song I heard a few years ago ‘Thois I Lar an Glanna’– a kind of modern song sung by Albert Fry and other Donegal singers. And the last two lines are two things, asking God up there in the heavens, even though you don’t believe in him, to send you back even though you know it can’t happen. Those two things sum up where I am now.

The song she mentions above is played and sung in the youtube video above, very beautiful.

NPR interviews with O’Faolain

What Hillary Accomplished in Ireland by Nuala O’Faolain
 

Almost everyone has heard of Oskar Schindler (Schindler’s List) and his heroic rescue of 1,200 Jews during Hitler’s reign . Not so many know about Irena Sendler, above, who as a 29-year-old Polish social worker ultimately rescued 2,500 Jewish children from Nazi occupiers of Warsaw, Poland, who had built a wall and a ghetto for the Jews.

Sendler had been influenced by her father, a doctor, who defied the Nazis and treated sick Jews during outbreaks of typhoid fever.  Her father died of typhoid fever himself when Sendler was 9 years old.

Sendler in 1943 shortly after escaping from Pawiak prison.

Social workers were not allowed in the Warsaw ghetto, but Sendler went in anyway, along with 25 comrades she had recruited to help her, 24 of them women.  They called themselves “Zegota”.  Sendler and her sisters (and one brother) went into the Warsaw ghetto, risking their lives — Nazi orders were to shoot non-Jews and anyone who aided them on sight —  and rescued children, carrying them out in baskets, boxes, wrapped up in packages, in coffins.   Their parents, in anguish, would ask Sendler whether she could ensure their children would live.  Sendler could not.  But she knew and told them that if she did not carry the children to safety, they would surely die. 

The jars containing names and information about the rescued children were buried here in Sendler’s friend’s garden, under the tree above.  Her friend’s daughter, Hanna Piotrowska, who was 12 years old at the time her mother and Irena buried the jars, still lives at this residence.

Sendler found safe places for all of the 2,500 children she rescued – in orphanages, in private homes.  She gave them non-Jewish aliases, carefully recording their true names on thin rolls of paper, hoping she could eventually reunite them with their families. She preserved the rolls of paper in jars she buried in a friend’s garden. 

In 1943, Sendler was captured by the Nazis, imprisoned and tortured over many days.   However brutal the torture – Sendler’s feet and legs were broken during one torture session and she passed out from the pain –  Sendler never disclosed the names of her comrades, the location of her buried bottles containing the names of rescued children,  or anything about the children.  Eventually she was able to escape.

When the war ended,  Sendler unearthed her jars and tried to reunite the children she had rescued with their families.  Most of their families were dead.  Many of the children she rescued were adopted by Polish families.  Some went to Israel.

Megan (Felt) Stewart (above) stumbled on Sendler’s story as a 9th grader in Kansas, wrote a play about it, and made the world aware of what Sendler had done.

Although in 1965, Sendler was recognized by Yad Vashem, Israel’s Holocaust authority, as a “Righteous Gentile”, an honor given to non-Jews who risked their lives to save Jews during the reign of the Nazis, comparatively few knew of Sendler’s work until 1999, when a ninth grade girl in Kansas, Megan Felt, and several of her girlfriends, stumbled across an article about Sendler.  Felt wrote a play about Sendler called “Life in a Jar,” and eventually traveled to Poland to meet her shero.  Since 1999, Felt’s play has been presented over 250 times in three countries.  Felt and her friends created the Irena Sendler Foundation, raising money to pay for Sendler’s care as an elder woman.  In 2006, Sendler was nominated for a Nobel Peace Prize.

Sendler passed over at 98 years of age yesterday, May 12, in Warsaw Poland, of pneumonia.  She leaves a daughter and a granddaughter to mourn.

Link

Heart

Already!  At Maggie’s Metawatershed.

It looks spectacular, Maggie!

Heart

Note:  I was going to post this as a comment to the original “Intentional Sex Torts” thread, but I couldn’t import the formatting (I formatted it inside of a “New Post” box on my dashboard) and don’t have time to reformat.  And, maybe it’s better to start a fresh thread anyway, for several reasons.  So, here it is.   Deana Pollard Sacks’ article in full is here.  Her post at Feminist Law Professors is here.  – Heart

I read through this thread reasonably carefully last Saturday and excerpted some things which I thought were important to talk about.  Before I composed a response, though, Ann Bartow posted the link to Deanna Pollard Sacks’ article, which I have read.  I thought it was great that Sacks’s actual article addressed each of the points I thought deserved discussion.

Supe: Shouldn’t each party perform due diligence before we hold him liable for claiming he’s rich or whatever?

Based on my reading of Sacks’ article, yes, she says each party should perform due diligence before we hold him liable for having violated a woman’s (or a man’s) sexual autonomy. However:

An intentional tort action should lie when the facts sufficiently prove that one romantic partner misappropriated another’s sexual autonomy. Battery is the best intentional tort theory for cases of sexual choice misappropriation.

Battery protects the individual’s unfettered choice to determine who touches his body and is protected in recognition of its core value to American concepts of freedom and self-actualization.  Its elements are amenable to proof in the context of sexual deceit by reference to existing battery doctrine defining “offensive” contact and “consent.”

 

Dignitary harm is presumed to flow from interference with bodily autonomy, because the right of bodily autonomy is considered integral to self-determination and therefore fiercely protected. Compensatory damages for battery are most comprehensive, and include general damages for emotional distress and mental suffering such as fear, anxiety, indignity, or disgrace in addition to economic losses.

 

Plaintiff’s right of autonomy even includes a zone around the plaintiff’s actual physical body:  

“Since the essence of plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed.”  Thus, grabbing another’s plate, or hat, or garment, or even blowing smoke into another’s face, may be actionable.

 

Plaintiff need not know that the contact is offensive at the time of the contact, because liability is based on the defendant’s “intentional invasion of [plaintiff’s] dignitary interest in the inviolability of his person and the affront to [his] dignity . . . . This affront is as keenly felt by one who only knows after the event that an indignity has been perpetrated upon him as by one who is conscious of it while it is being perpetrated.”

 

Two elements must be proven to establish a claim for battery: intent to cause a harmful or offensive contact, and a resulting harmful or offensive contact.   In sexual choice misappropriation cases, the defendant usually does not intend to “harm” the plaintiff’s body, but rather, seeks sexual gratification to the detriment of plaintiff’s fairly informed decision. These cases therefore require a showing of intent to “offend.”

 

Consent is the usual defense, since plaintiff usually consented at the time of sex, but later learned facts that arguably vitiate consent, making the contact “offensive” to plaintiff in light of after acquired   Existing authority provides two separate bases for finding conduct to be “offensive,” which are referred to herein as actual and constructive intent to offend. First, if plaintiff clearly manifests a subjective desire to avoid defendant’s contact for any reason, defendant’s contact thereafter is per se  offensive because choices pertaining to who touches one’s body are unfettered and are not subject to review based on reasonableness or sexual norms.  Thus, if a person actually expresses his sexual preference to the defendant, or the preference is otherwise actually known to the defendant, and such preference is disregarded by the defendant in order to obtain consent to sex, the defendant will be held to have intended offensive contact because she has knowingly undermined plaintiff’s right of sexual autonomy.

 

Similarly, if the defendant obtains consent with actual knowledge of plaintiff’s incapacity to consent, she should be held to have intended offensive contact based on her knowledge of a lack of true consent. This is actual intent to offend.

 

Second, the Restatement’s conception of “offensive” contact includes contact that violates social usages that are “prevalent” at the time and place of the contact.  That is, offensive contact may be established by social standards that bind the defendant constructively, regardless of her actual intent to offend.  Some common and minor touchings may be presumed acceptable based on social usages, such as tapping another on the shoulder, touching another’s sleeve, brushing past another in a crowded subway, or shaking hands upon introduction. This reflects a common-sense approach to inevitable contact in a crowded society. However, if defendant perpetrates physical contact that exceeds the bounds of ordinary social usages, she will be held to have done so with constructive intent to offend

 

The concept of constructive intent to offend is consistent with other intentional tort law doctrine. For example, misappropriation for purposes of a conversion claim is established upon proof that defendant exercised control over a chattel owned or possessed by plaintiff inconsistent with plaintiff’s property rights, even if defendant is unaware that her actions violated plaintiff’s rights: “The focus of inquiry is not on the defendant’s conduct, but on the plaintiff’s property rights.”

 

No proof of “wrongful” intent is required; defendant may even be operating under a mistaken belief that she owned the property.  This is the same type of minimal intent required for trespass to land: a simple, perhaps innocent, intent to enter land owned by plaintiff establishes a case because the plaintiff’s property rights have been violated, whether or not defendant intended any violation. These rules place an onus on all persons to exercise care to avoid trampling on others’ property rights, which translates into a due diligence duty to determine ownership, because ignorance is no defense.  Constructive notice is sufficient to warrant liability for a variety of intentional torts.

 

Surely a person’s right of bodily and sexual autonomy deserves the same type of protection against others’ infringement. Providing such legal protection validates the Restatement’s conception of “offensive” conduct: bodily autonomy must be respected, and it is infringed when defendant fails to abide by minimal social standards of respect for others, regardless of whetherdefendant subjectively intended to offend the plaintiff or interfere with his autonomy. Constructive intent to offend has already been applied in romantic touching battery cases: a well-intentioned kiss is actionable in the absence of plaintiff’s consent because it exceeds what is presumably allowed without consent in our society.  (Bolds mine.)

I2XU: I’ll break it down for you very simply. The legislation adopts a “reasonable person” standard. This is one of the fuzziest, fact based inquiries in our legal system. What are lies that would make a reasonable person withdraw consent if they knew the truth? Who gets to decide what lie vitiates consent? 

Consent is a defense to battery, provided it was reasonably informed and not induced by fraud. Consent is vitiated by fraud if plaintiff’s consent was made in reliance upon one or more untrue facts that were material to plaintiff’s decision to consent, and defendant was aware of plaintiff’s reliance on material, untrue facts. Consent should also be vitiated in the absence of actual fraud where plaintiff’s consent was uninformed because he had no reason to know of risks within defendant’s knowledge that defendant failed to disclose despite constructive knowledge that the risks were material to plaintiff’s decision to consent. This “uninformed consent” analysis adopts the Restatement’s constructive intent to offend analysis. These two bases for vitiating consent will be discussed separately.

 

1. Fraud Vitiates Consent.  

For consent to be vitiated by fraud, a fact finder must determine that plaintiff reasonably relied on one or more false facts that were material to plaintiff’s decision to consent.   In addition, defendant must be guilty of lying about, or concealing, the material facts in order to gain plaintiff’s consent.  Thus, for example, consent to enter another’s land based on false pretenses invalidates consent, resulting in liability for trespass to land.  In economic fraud post laissez-faire, materiality is broadly construed in favor of plaintiff’s autonomy in making economic decisions based on a fair and adequate presentation of the facts relating to the transaction.

Fraud related to physical risks has been held to vitiate consent in battery cases. For example, failing to inform another that brass knuckles would be used during a fight vitiates consent to the fight because the consent was grounded in a mistaken understanding about the degree of risk. In the sexual context, failure to disclose physical risks can vitiate consent; a number of cases have held that where plaintiff mistakenly believes defendant to be free of sexual disease, or infertile, and that defendant knows of plaintiff’s mistaken belief and does not correct it, consent is vitiated, resulting in liability for battery In certain types of sex tort cases involving dignitary and emotional risks only, fraudulently-induced consent has been held to vitiate consent. For example, if a medical professional represents that she is touching the plaintiff’s genital area for medical purposes when in fact she is seeking sexual gratification, plaintiff’s consent to the physical contact is invalid. The idea apparently is that the plaintiff in such cases did not consent to sex at all, but was fraudulently induced to consent to what he believed was necessary medical treatment. The fact remains that, in these cases, when consent to sexual touching is induced by fraud relating to the purpose of the touching, and the true purpose is defendant’s sexual gratification, consent is vitiated by fraud in the inducement with or without resulting physical injury. Yet, in the romantic context, where plaintiff is fraudulently induced to consent to sex, and only dignitary and emotional risks are at stake, courts have frequently reasoned that fraud does not vitiate consent as a matter of law due to a lack of standards for materiality.  However, materiality is an issue properly decided by a jury or other fact-finder, and standards for materiality are readily available by reference to existing fraud case law.

 

Materiality requires that: the false statement upon which plaintiff allegedly relied must relate to a past or present fact; must relate to a material aspect of the agreement, as opposed to a collateral aspect; must not be mere “puffing;” and must not be a mere prediction of future events over which defendant lacks control. Thus, statements not amenable to factual proof, such as “I love you” or “You are the one for me” are akin to puffing or prediction, and should not establish fraud in the inducement of sex as a matter of law. However, there are other types of statements that are amenable to factual proof, such as marital status, or whether defendant is currently sexually involved with other persons. Misrepresentations regarding such factual matters create a relatively simple jury question regarding materiality and validity of consent.

 

The issues of fact involved in fraudulently-induced sex cases in the romantic context are no more difficult to decide than issues in other types of fraud cases where a jury must determine whether, under all of the circumstances, a statement is factual, or mere puffing, prediction, or opinion.  Whether plaintiff justifiably relied, i.e., whether he was on notice somehow of the misrepresentation but failed to heed such notice, is also a jury question.  The fraud/mistake exception to valid consent is often grounded in defendant’s intentional misrepresentation of facts in order to gain consent, but could also be based on defendant’s failure to speak up regarding material information of which she is aware plaintiff is relying, and which is inaccurate.  Defendant’s intentional misrepresentations or omissions of fact regarding marital status, extramarital affairs,136 relationship status, family background,138 or other objective, material factual aspects of her life should vitiate consent in order to protect the plaintiff’s sexual autonomy, provided causation is established.139 The law should protect personal choice in sexual matters consistent with the longstanding rule that fraud vitiates consent, and leave case-by-case decisions to a finder of fact, as in other types of intentional tort cases.

 

2. Uninformed Consent.

 

Consent may be invalidated after the fact because it was “uninformed” at the time it was given. Informed consent requires informed persons in trusting relationships to disclose all material information that reasonably could impact another’s consent to a transaction prior to closing the transaction, or else the consent is invalid. This fiduciary-type disclosure requirement is no novel concept in tort law, and manifests in many forms, such as requiring disclosure of latent defects in real estate sales, and requiring warning labels on dangerous products.  The tort duty to disclose information to another is based on the concept that a person with superior knowledge or information should not abuse her superior position to the detriment of another, or cause another to accept a transaction he would have rejected had she made fair factual disclosure.  In the context of battery law, informed consent has been applied only in the medical context.142 Informed consent requires that medical professionals provide adequate information regarding risks that “a reasonable patient would consider in deciding whether to undergo the medical procedure.”   Although usually analyzed as medical malpractice cases, a number of courts have recognized that since the patient’s right lies in self-determination, whether information should have been disclosed should turn on a legal test for materiality, not a medical negligence standard.  The patient has the right to weigh his subjective, individualized fears and values against the risks involved, so the personal, not medical, question should be reserved to the patient alone.  What must be disclosed for informed consent is therefore an issue to be determined by a finder of fact,  using a reasonableness standard that includes

defendant’s knowledge of plaintiff’s particular fears, preferences, and values.  A critical issue in informed consent jurisprudence is establishing a duty to disclose adequate information prior to obtaining consent. The informed consent rule has been applied to doctors and other medical professionals for two reasons. First, a confidential, fiduciary relationship exists between a doctor and rise to disclosure obligations.   Second, a doctor has superior access to information that a patient needs in order to make an informed choice, but the patient may not even know what questions to ask.  Thus, at least some courts will allow an action for battery against a doctor when the doctor nonnegligently performs a procedure but failed to disclose material risks that a reasonable patient would want to know prior to consenting. Fraud or mistake

need not be shown in order to vitiate consent because plaintiff is entitled to rely on fair interpersonal dealings and candid disclosure, to protect his right of selfdetermination.  A similar expectation of candor requiring informed consent may be appropriate between sexual partners, considering the high emotional and physical risks involved in sexual intimacy and the public policy favoring protection of sexual autonomy.  Whether a confidential relationship exists should be a question of fact, depending on the circumstances involved, such as length and nature of the sexual relationship.  A sexual decision may present a more compelling case for applying the doctrine of informed consent than some medical decisions. In many circumstances, medical intervention is necessary for proper health or  survival. Therefore, as a practical reality, a patient’s decision may not be impacted by a lack of full disclosure of all the risks. That is, but for the lack of disclosure, the patient probably would have made the same medical decision out of necessity. The sexual decision, on the other hand, is always entirely discretionary with no physical risks resulting from refusal to consent: cause-infact is more clear in the sexual context.  What information must be disclosed in order for consent to be sufficiently informed should also be a reasonable/materiality fact issue, based on all of the evidence. Adopting this informed consent approach would create convergent analysis between the prima facie element of intent to offend grounded in social usages and the exception to consent based on a lack of information: both are grounded in reasonable social expectations of candor and respect for others’bodily autonomy. In addition, both place an onus on defendant to avoid misappropriating plaintiff’s right of self-determination, similar to the onus placed on defendants in other intentional tort matters. This proposed uninformed consent analysis is also consistent with the consent counterpart in negligence law: consent that is not adequately informed should not constitute a defense to battery any more than assumption of the risk should bar a negligence claim when the party against whom the defense is asserted voluntarily encounters the risk without understanding it.

 

Informed consent analysis is necessary in sexual autonomy infringement cases because there are subtle forms of sexual misappropriation that flout social expectations and convert plaintiff’s sexual choice, yet are not amenable to the proof requirements for fraud or mistake to vitiate consent.   The fraud/mistake rule places a burden of proof on plaintiff to demonstrate defendant’s actual knowledge that plaintiff’s consent was based on a factual mistake, which proof is not necessary under informed consent analysis.  Plaintiff’s burden of proof that consent was invalid should not be greater than his burden of proof on the element of intent to offend: since social usages set the standard for expectations regarding what contact is presumably “offensive” (to sustain the prima facie case intent element per the Restatement), plaintiff should be allowed to rely on social usages regarding reasonable expectations of disclosure to meet his burden of proof that consent was not reasonably informed and therefore invalid.

Supe:  Do you really think that people used to think it was moral for husbands to beat and force sex on their wives? I doubt many people actually thought that way. Just because people turn away from something bad doesn’t mean that they think it’s okay. Most often the law butted out of those instances because the home was something sacred that the law shouldn’t invade. People didn’t think violence was okay; they just didn’t want to get involved in domestic disputes.

I promise you,  Supe,  only those who weren’t touched by marital rapes and “domestic” violence so-called wanted society/lawmakers to “butt out.”  I also promise you that those who were being raped and beaten by husbands wanted laws to protect them. 

Not only did people think domestic violence was okay, at various times and in various venues, laws have set forth, for instance, precisely what implements men were allowed to use to beat their wives.  Usually men did not openly state it was all right for  wives to be raped.  Instead they framed the issues in terms of the “right to consortium,” i.e., in terms of the wife’s marital duties or obligations.  And women might not openly state it was all right for them or other women to be raped.  They would frame the issues in terms of the obligations they had as wives to provide sex for husbands.  No matter what words or terms we use, sex that is not wanted is rape.  If lawmakers turned away from this kind of rape because the home was sacred, they were in fact stating that within the home, rape was acceptable in a way it was not outside the home.  They did in other words think it was “okay.”

I2XU: Do we arrest and prosecute a janitor for lying to a person about his or HER job? Will the janitor be convicted? The answer is yes if a reasonable person would not consent to sex with him or HER knowing the truth.

I think Sacks covers this question in the quote I bolded above about materiality.

Supe:   Still, the point I was attempting to make with my first post was that I am not sure what harm it is trying to prevent….I was merely trying to address what I perceived was the harm that the law sought to prevent, which I hypothesized might be a woman getting pregnant.

In the typical sexual deceit case, the plaintiff learns some time subsequent to the sexual contact that his consent to sex was induced by deception. In general, the issue of whether fraud vitiates consent to physical contact after the fact is a question of fact to be determined in accordance with all of the evidence.  However, when a person learns of fraud in the inducement of sex after the fact, the established fraud exception to consent has generally been disregarded, based on the “privacy” of sexual negotiation and the supposed “difficulty” in deciding whether the fraud or manipulation involved was sufficiently material to vitiate consent. This may explain why fraud-based sexual battery claims resulting in a sexual disease have been much more successful than fraudbased sexual battery claims where no disease was transmitted: it seems objectively obvious that sexual disease would materially impact sexual consent.  Courts seem uncomfortable going to trial in sexual deceit cases lacking tangible physical injury.

 

…The conflict in the case law reflects the gray areas created by the unfortunate reality that both men and women lie about various factual aspects of their lives in order to obtain, or keep, sexual relationships.  The majority rule in sexual deceit cases fails to protect personal choices regarding sexual contact. The general rule is that sexual deception and manipulation, no matter how outrageous, intentional, or malicious, is not actionable unless plaintiff suffers sexual disease or other physical injury.  The normative impact is that it is acceptable to manipulate others’ sexual choices through fraud, deceit, or a lack of common decency.  Judges’ views of these cases involving “only . . . an ordinary broken heart” fail to recognize the very real, albeit intangible, injury that often results from deceit in sexual relationships. The loss of an intimate relationship can cause serious emotionaland psychological distress, even in the absence of disease. symptoms such as sleeplessness, panic attacks, loss of appetite, and deep depression are not uncommon. Betrayal in intimate relationships can cause lifelong emotional scars and permanent pain, including a lifelong inability to be intimate because of an inability to trust. The emotional fall-out from deception in the most intimate of personal relations may have lasting consequences not just for the deceived person, but for those emotionally attached to him who experience emotional pain vicariously, such as spouses, children, siblings, and parents. Intentional sex tort law should be reformed to protect more effectively sexual autonomy and the emotional and other harm resulting from its infringement.

Supe:  I’m rather astonished that you think it’s find to get enraged about an argument simply because it is in favor of a privileged position.

Theoretically, men and women are supposed to enjoy equal protection under the laws of the land.  Where the law privileges men over women, the goal is to rectify that particular imbalance or inequity, wouldn’t you say?  As opposed to defending a position that defends privileges men enjoy at women’s expense. 

Supe:  I2XU already mentioned one for the child rape scenario, which highlights one of the odd results that could occur under this legislation.

This is what I2XU said:

What does happen often is a sexual predator preying on the vulnerability and insecurities of a child to “persuade” the child to have sex with him. And we have recognized that we need our legal system to disregard the scienter of the child and focus solely on what act was committed. So, in having sex with 14 y/o, 19 y/o above is guilty of the offense, regardless of what was in either of their minds. This is a necessary result if we want our laws to protect children from those who prey on them.

Now consider this exchange occurred in a jurisdiction with the present law in effect. Both 19 y/o and 14 y/o would be guilty of rape. No reasonable person would have sex with a 14 y/o knowing that doing so would be 1. disgusting; and 2. illegal. So, but for 14 y/o’s lie, 19 y/o would not have had sex with him or her. So, a bizarre result obtains. Both have raped each other. Neither one has consented to sex. 14 y/o can’t consent, and 19 y/o presumed consent has been vitiated by 14 y/o’s lie. I hope this example illustrates the absurdity of the present law.

Statutory rape would still be statutory rape.  As both you, Supe, and IX2U have stated, underaged persons cannot legally consent to sex.  The fact that the 14-year-old lied would only be at issue if 14-year-olds could legally consent to sex with persons over a year or two older than them, and if that was the law, it would need to be changed, I’d say, but I doubt that is the law in any of the states.

Why are you injecting gender into the law? It is a law written without specification of gender. I don’t mean to disparage how a woman might read this, but the main consideration is how legal personnel (both women and men) would read the law. I articulated above how legal people read laws, and these are the people who apply the law. Since legal people apply the law, their reading is all that ultimately matters in determining who gets punished for breaking this law.

Not really.  Juries also determine who gets punished and who doesn’t.  I would imagine that if laws such as these are widely enacted, quite often plaintiffs (and for that matter, defendants)  would ask for jury trials, meaning everyday citizens would participate in determining how the laws would be applied and understood, although they would, of course, be bound by jury instructions and would be instructed as to the law itself throughout the trial.

The law or proposal as Sacks presents it is gender-netural.  The following is from footnote number 12:

It has been argued that gender-neutrality is not possible, and that “gender neutrality just masks systemic oppression.” See Leslie Bender, Teaching Torts As If Gender Matters: Intentional Torts, 2 VA. J. SOC. POL’Y & L. 115, 115-117 (1994). Catharine MacKinnon has argued that women are the group from whom “sexuality is expropriated.” See Catharine MacKinnon, Feminism, Marxism, Method and the State: An Agenda for Theory, 7 SIGNS 515 (1992). However, informal research indicates that both men’s and women’s sexual choices are misappropriated in today’s world, such that both genders deserve protection. See, e.g., infra note 50. Men’s and women’s damages claims may be conceived differently. Thus, although it may be true that the  overwhelming majority of emotional distress claims have arisen from harmful contact by men, rather than women,” see Bender, supra at 147-148, harm to men resulting from sexual deceit may be described by men more commonly in terms of financial losses. For example, based on my own conversation with dozens of men about this topic, their “distress” over deceit in sexual relations often centers on financial investments in relationships that they entered into based on a woman’s misrepresentations, such as by providing financial support in an agreed-upon  monogamous relationship and later discovering that the woman is sexually involved with other men. Thus, women may overlook men’s distress from sexual deception in the same way that men (and the law generally) may overlook the degree of emotional harm women experience as a result of sexual coercion and deceit. The gender-neutral battery paradigm proposed herein would allow a plaintiff to plead and prove the full gamut of tort damages – general and special compensatory damages, and punitive damages where appropriate – based on his or her individual experience. Perhaps most importantly, the gender-neutral paradigm recognizes that some men experience emotional pain similar to female victims of sexual deceit, and some women suffer economic losses as a result of sexual deceit similar to men’s stereotypical experiences. If gender-neutrality is not possible, a flexible gender-neutral paradigm for sexual misappropriation may nonetheless be the best tort remedy for this form of harmful sexual behavior so that the jury – the barometer of minimal civil expectations and requirements – can make injury assessments and damages awards in individual cases.

So there are some places in Sacks’ article for us to begin. 

Here are some thoughts that come to my mind so far as situations where a woman possibly might not have consented to sex had she known the truth, and which I believe would “vitiate” any consent she had given ahead of time:

• The person had a STD;
• The person was married or had one or more sexual partners;
• The person had a history of criminal violence against animals, women or others;
• The person had a history of molestation of a child or of incest;
• The person had a history of rape or sexual assault;
• The person had a history of sexual harassment;
• The person was a drug abuser;
• The person was a felon;
• In the case of a lesbian, the other person was not born female;
• In the case of a heterosexual woman, the other person was not born male;
• The person had living, underage children;
• The person had a terminal illness;
• The person was not who he held himself out to be in ways which were significant, i.e., he said he was an unmarried entrepreneur named Bill Gates when in fact he was an unemployed, married, used car salesman named Mergatroid Schmidlap.   This kind of thing would be particularly  useful in instances where men meet women on the internet and go from woman to woman across the country “marrying” each one using different names, ripping them off, sometimes killing them, and then moving on to the next victim.  These guys can always claim the woman “consented”.
• The person uses prostituted women;
• The person goes to strip bars;
• The person uses pornography;
• The person is into bdsm or has other sexual fetishes.

So there is a partial list of lies I think would “vitiate” consent.  Note that they do not include the guy’s profession, job, or income level or his having said, “I will marry you” or his having proclaimed a woman to have been the most beautiful woman in the world.  The idea that women are all about this kind of lie is a male fiction.  (It’s also about males competing with males; i.e., male pissing matches– this kind of stuff really has little to do with how women decide who they will have relationships or sex with). 

Heart

 Mother’s Day Proclamation of 1870

“Arise, then, women of this day! Arise, all women who have hearts, whether your baptism be that of water or tears!

Say firmly: “We will not have great questions decided by irrelevant agencies. Our husbands shall not come to us, reeking with carnage, for caresses and applause. Our sons shall not be taken from us to unlearn all that we have taught them of charity, mercy and patience. We women of one country will be too tender of those of another to allow our sons to be trained to injure theirs.”

From the bosom of the devastated earth, a voice goes up with our own. It says, “Disarm, Disarm!”

The sword of murder is not the balance of justice. Blood does not wipe out dishonor, nor violence indicate possession. As men have often forsaken the plow and the anvil at the summons of war, let women now leave all that may be left of home for a great and earnest day of counsel. Let them meet first, as women, to bewail & commemorate the dead. Let them solemnly take counsel with each other as to the means whereby the great human family can live in peace, each bearing after his own time the sacred impress, not of Caesars but of God.

In the name of womanhood and of humanity, I earnestly ask that a general congress of women without limit of nationality may be appointed and held at some place deemed most convenient and at the earliest period consistent with its objects, to promote the alliance of the different nationalities, the amicable settlement of international questions, the great and general interests of peace.”

The women responsible for the holiday we know as Mother’s Day did not celebrate the day as it is celebrated today in the United States. The day as they envisioned and conceived it had nothing to do with telephone calls from children, flowers, candy, or dinners out. It had nothing to do with the mothers and grandmothers with the most children and grandchildren being recognized with carnations and ribbons during church meetings. It wasn’t about Hallmark cards or Hallmark moments.

The women most responsible for Mother’s Day were radicals; feminist revolutionaries. Julia Ward Howe, who penned the Mother’s Day Proclamation of 1870, was an abolitionist, sharing leadership of the movement with the likes of William Lloyd Garrison, William Cullen Bryant, and Ralph Waldo Emerson. She was a playwright, a poet and a mother of six who once wrote of her abusive marriage under a pen name when her husband forbade her to publish. She was a peace activist who worked tirelessly for an end to war and for healing the wounds of war which were suffered by civilians and soldiers alike. She was a woman who began to see and understand the parallels between the institution of slavery in the United States and the enslavement of the people of women.

Julia Ward Howe struggled as we struggle today in an oppressive marriage in which her husband threatened that if she divorced him - as she tried to do and wanted to do - he would maintain custody of their youngest two children. Chattel to her husband, as were all wives in the 1800s, Howe’s husband controlled her inheritance, using this power he had over her to withhold the money which would have allowed her freedom to independently engage in the political work which gave her life meaning.

If we understand the reality of Howe’s life, then what she wrote in her Mother’s Day Proclamation takes on new meaning for us. When Howe writes, “Our husbands shall not come to us reeking of carnage for caresses and applause,” she writes not only of the reality of mothers in bondage to their husbands throughout history, she writes of her own very private and personal bondage - and hell — as well.

Mother’s Day was originally Anna Reeves Jarvis’s idea. Jarvis had been a peace activist during the Civil War, devoting herself to healing the wounds and horrors of war for soldiers and their families on both sides. Jarvis called the very first “mother’s days,” “Mothers’ Work Days,” days set aside to improve sanitation during a time when more soldiers in the Civil War were dying from disease and infection than from the wounds of battle.

It was the outbreak of the Franco-Prussian War in the 1870s, following on the heels of the devastation of the Civil War, which moved Julia Ward Howe to begin a one-woman international peace crusade inaugurated by her Mother’s Day Proclamation of 1870. In 1872 she traveled to Europe hoping to promote an International Women’s Peace Conference, but established peace organizations there would not allow her to speak publicly because she was a woman. She rented her own hall and conducted her own meetings, but her attempts failed. She returned to the U.S. and promoted Mother’s Day as a day as a festival of peace; her initiative was successful and resulted in a June 2 Mother’s Day celebration in major cities which lasted 30 years. It was a day in which mothers and grandmothers united to oppose violence and war, a day in which they demanded that men lay down their weapons and work for a peaceful new world.

Mother’s Day lasted only for a short time in its conception as a day of revolution and resistance. When the elder Ann Jarvis died, her daughter began a campaign to revision Mother’s Day as a holiday honoring the individual sacrifices of mothers for their families. The younger Jarvis’s efforts found favor with Woodrow Wilson’s relentlessly anti-Women’s Suffrage administration, and in 1913, Wilson proclaimed the second Sunday in May Mother’s Day, without any reference to the reason for which it was envisioned by the elder Jarvis and Julia Ward Howe.

Today Mother’s Day in the U.S. is a billion-dollar industry dedicated to sentimentalizing and romanticizing motherhood as patriarchally envisioned, all the while the Bush Administration, patriarchal religion, and conservative ideologues in general wage war on mothers by way of forced motherhood, denying access to contraceptives and abortion, criminalizing them and penalizing them for such things as breastfeeding in public, for their health problems, disabilities, and impoverishment, for their victimization by abusive partners, and for rejecting the abuses of technobirth in favor of birthing their own way, attended by midwives. Today’s Mother’s Day, instead of being a day of resistance to all forms of violence, war, and tyranny, is a day set aside for the perpetuation and repetition of platitudes, meaningless gestures, and consumerism. It is a mockery of the revolutionary vision and work of the women who conceived it.

Howe is remembered in male supremacist history as the writer of the Battle Hymn of the Republic, but that song was written just as Howe began her public work and before the burgeoning of her own feminist consciousness. Later she would write:

“”During the first two thirds of my life, I looked to the masculine idea of character as the only true one. I sought its inspiration, and referred my merits and demerits to its judicial verdict. . . . The new domain now made clear to me was that of true womanhood — woman no longer in her ancillary relation to her opposite, man, but in her direct relation to the divine plan and purpose, as a free agent, fully sharing with man every human right and every human responsibility. This discovery was like the addition of a new continent to the map of the world, or of a new testament to the old ordinances.”

It was in this spirit that Howe penned her Mother’s Day Proclamation of 1870. What might our communities, nation, our world, look like, were mothers and grandmothers to re-member and recover our herstory,  dis-membered now by male supremacists? What if we were to reject the mockery which has been made of Howe’s proclamation and this day, in favor of returning to our foremothers’ revolutionary militance and dedication to the building of a new world, for our children and grandchildren, for all people? What if we seized this day, taking the opportunity it affords us to remind our children, grandchildren, friends, relatives, all who will listen of the vision of the women whose work originally inspired this day. What if we read the true Mother’s Day Proclamation to our families and then told them the story of the woman who wrote it?

Heart

Violence Against Lesbians of Color and the Love That Empowers Us is an art exhibit that will be held at the Brecht Forum in June. The opening reception is June 6th and will have dynamite performers. We are trying to commemorate the death of Sakia Gunn, Rayshon Holmes and Shania Baraka. We are also going to remember the New Jersey 4 and are looking for lesbians of color to do artwork to make these women ’s struggles visible.

Please contact Anoush if you are interested and spread the word. 

Thanks for this heads up, Nicole! 
 

Rain and Thunder:
A Radical Feminist Journal of Discussion and Activism
 
Rain and Thunder is a grassroots publication that highlights women’s writing from radical feminist perspectives and writing that contributes to radical feminist ideas. Rain and Thunder  brings you eclectic and dynamic writings on a diverse range of issues, including globalization, spinsterhood, women’s writing and literature, art and creativity, mental health, women’s history, global feminism, and much more.
 
Rain and Thunder is published quarterly and is available at a sliding scale subscription rate. Join us in creating a culture of resistance and a liberation movement! Subscribe and take part in Rain and Thunder! For more information or to subscribe, contact:
 
Rain and Thunder Collective
PO Box 674, Northampton , MA , 01061
rainandthunder@yahoo.com
www.rainandthunder.org

Deadline for submissions to the 14th Carnival of Radical Feminists is Monday, May 12, so send your links to favorite posts to Maggie over at Maggie’s Metawatershed  by clicking here.   You can read more about the Carnival of Radical Feminists here.  Feel free to submit as many posts as you’d  like,  your own or anyone else’s, just make sure they are consistent with the guidelines established here.

If you’d like to host a Carnival of Radical Feminists, send me an e-mail by clicking “E-mail Heart” up at the top.  We have openings beginning in July.

Heart

To the extent your reality does not fit the law’s picture, your rape is not illegal.  The implications of this for everyday sex life are that any man who knows a woman of the same race can probably get away with raping her.  The better he knows her, the  more likely he is to get away with it.   Married women in states that do not have a law against marital rape are the ultimate example…

What does all this mean for having no mean no?  When no can legally mean yes, what does yes mean in everyday life?  When rape passes legally as intercourse, what is sexual intimacy?  The law of rape deeply affects sexual intimacy by making forced sex legally sex, not rape, every night.  Every day, because women know this, they do not report rapes nine times out of ten.  When a woman does report, the media have the legal right to print her name and picture, making her into everyday pornography…Many women, no matter how violated they were, do not call what happened to them rape if they do not think a court would agree with them.  In this ultimate triumph of law over life, law tells women what happened to them and many of us believe it.  When asked, “Have you ever been raped?” many women answer, “I don’t know.

…The realm in which women’s everyday life is lived, the setting for many of these daily atrocities, is termed “the private.”   Law defines the private as where law is not, that into which law does not intrude, where no harm is done other than by law’s presence.  In everyday life, the privacy is his….Wives are raped in private.  Women’s labor is exploited in private.  Equality is not guaranteed in private.  Prostitution, when acts of sex occur out of public view, is often termed private….

Women in everyday life have no privacy in private.  In private, women are objects of male subjectivity and male power.  The private is that place where men can do whatever they want because women reside there.  The consent that supposedly demarcates this private surrounds women and follows us wherever we go.  Men seem to reside in public where laws against harm exist — real harm, harm to men and whoever has the privilege to be hurt like men — and follow them wherever they go.  Having arranged the law against rape and battering and sexual abuse of children so virtually nothing is done about them, and having supported male power in the home as a virtual absolute, the law then proclaims its profoundest self-restraint, its guarantee of liberty where it matters most, in “the right to be left alone.”  This home is the place Andrea Dworkin has described from battered women’s perspective as “that open grave where so many women lie waiting to die.”  As a legal doctrine, privacy has become the affirmative triumph of the state’s abdication of women.  Sanctified by the absolution of law, the private is the everyday domain of women in captivity, abandoned to their isolation and told it is what freedom really means.–Catharine A. MacKinnon, “Law in the Everyday Life of Women,” in Women’s Lives, Men’s Laws, Belknap Press of Harvard University Press, Cambridge, Massachusetts, 2005

In the same chapter from which I excerpted the above quote, MacKinnon makes the point that women in the United States have so far made at least one law:  the law against sexual  harassment.  Before sexual harassment law, sexual harassment was simply everyday life for women, something men did to women with impunity.  When women’s experiences of being sexually harassed were made the basis for a law against that harassment, life began to change for women.  Men didn’t stop sexually harassing us, but there was a name for what they did now, and, as MacKinnon says, the experience had an “analysis that placed it within the collective reality of gender, a forum for controntation with some dignity and the possibility of relief. … Changing what could be done by law changed the way it felt to live through [sexual harassment] in life, and the status of women took a step from victim to citizen.”

In this same tradition of working for, advocating for, creating laws that work for women, that reflect our experiences as women — especially in domains heretofore protected (by men and for men’s benefit) under the aegis of male definitions of “privacy” — back to us,   Deana Pollard Sacks blogged about “intentional sex torts” over at Feminist Law Professors last week.   Sacks notes in her post that four states have now enacted laws which recognize “fraudulent inducement of sex” as rape:  Alabama, California, Michigan and Tennessee.  A Massachusetts attorney filed a similar bill in Massachusetts this past February which would recognize “stealing another’s sexual autonomy” as a crime:

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person’s consent by the use of fraud, concealment, or artifice and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, `fraud’ or `artifice’ shall not be construed to mean a promise of future consideration.

Intentional sex tort laws would require fair disclosure for giving of consent to be recognized as valid, with issues of intent to offend and offensive contact factored in, as with battery.  As Sacks says, “In a world filled with dangerous sexual diseases, 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.”  

Laws that recognize and punish theft of sexual autonomy (by, for example, lying about important things, like who someone is or whether he has STD’s, in order to get women to agree to have sex with him),  name a theft most women have experienced as rape and, as with sexual harassment law, offer an analysis and recognition of our lived reality which could powerfully change it.

How likely laws are to bring about real change for women can often be gauged by men’s response to their proposal.  Following are a few choice responses from male attorneys who blogged in response to Sacks’s post.  They give us some idea how large is the boulder we might have to move up the mountain and how steep the mountain might be.

Geek Lawyer, in a post entitled, creatively, ”Stupid Cunts,” writes:

Geeklawyer had thought that feminism was a joke that after 25 years was confined to history and the odd nostalgic memory of decaying overweight women with sagging breasts and moustaches…

Apparently a bunch of strapon wearing bull-dyke feminist law professors are asserting that lying to a woman in order to give her the pleasure of one’s Pork Sword is rape. American professors are a breed with less intellectual credentials than one would accept in the UK. Across the pond ‘Professor’ is merely a job title rather than, as it is here, a recognition of intellectual prowess.

A commenter to Above the Law’s post about intentional sex torts  offers a piece of his mind he really might should try to hold onto:

I find Professor Sack’s bigoted description of sexual dynamics disgusting. Why is it that men are depicted as sexual predators doing anything possible to “invade” a women’s bodies? And women are these bastions of sexual virtue knitting in the castle tower only trying to fend off attacks from the raving hordes below? Does she not realize that all human beings are sexual animals and will occassionally lie to get it?

Then there’s this guy (whose charming post is illustrated by the character ”Quagmire” from Family Guy):

Expanding tort law to cover dishonest sexual encounters is a horrifying proposition. We have to be left to be human — even if that means that some immoral, abhorrent, and even disgusting behavior will leak through the sieve of our legal system… For as long as we live and love, someone will lie about their feelings to someone else… I’mnot 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 f*** someone you are taking a risk.  That’s part of the thrill!

Yeah, coming up positive for HPV is just so damned hawt and sexxxeeeeee.

Well, it should be interesting.  Thanks to Ann Bartow for the distant early warning and especially for introducing me to Deana Pollard Sacks.  I’m looking forward to reading everything she writes and passing it along.

Heart

Sabrina Rasmussen, 19, above, was 11 years old when she was kidnapped by Terapon Adhahn, who was sentenced to life in prison without parole last Friday for the rape and murder of Zina Linnik, who was 12.   Rasmussen’s family’s car had been stolen days earlier.  Normally she would have been driven to school, but on this day she walked the six blocks.   I’ve walked those blocks many times.  I grew up in the Gault Jr. High school area, walked to Sheridan Elementary School every day, road the bus to piano lessons just a few blocks from Gault when I was only seven or eight years old.

A friend was with Sabrina at first as they walked to school, but her friend decided to take a short cut.   Shortly thereafter, Adhahn jumped out of a truck and chased, then grabbed Sabrina as she ran from him.  She was tiny, only 4′3″ tall. Adhahn forced her into his truck, drove her to a wooded area near Ft. Lewis, taped her to a tree and raped her.  After he left, she walked along a dirt road until she reached a highway where a woman soldier found her bleeding and carrying a stick as if to protect herself.  She was taken to the hospital and underwent surgery for her injuries.

Her attacker was never found until last year,  after he’d raped and murdered another girl, Zina Linnik.  All of those years, Rasmussen had feared he might come back for her.  He had told her repeatedly when he raped her that he was going to kill her.  DNA tests confirmed it was Adhahn who raped her.

Rasmussen came forward to tell her story publicly in newspapers and on television in support of other raped girls and women, so they might draw strength from the fact that she had survived.  She’s a tough cookie.    She told reporters if and when she testifies against Adhahn, she’ll look him in the eyes and say, “I’m the winner in this game.”  In a video you can watch here, she says, “If he’d tried it now, I could take him.”  Her video is worth watching, testifying as it does, to the strength and courage of this young woman survivor and her determination not only to go on with her own life, but to offer her support and stand in solidarity with all girls and women, and especially the other girls she believes have been Adhahn’s victims and who haven’t yet come forward.  Rasmussen was present in the courtroom when Adhahn was sentenced. 

Heart

UPDATE:  Terapon Adhahn, left, was sentenced Friday to life in prison without possibility of parole.  He was convicted of the following crimes:

• One count each of aggravated first-degree murder, first-degree kidnapping and first-degree rape in the July 2007 death of 12-year-old Zina Linnik.

 • Three counts of first-degree rape and one count of first-degree kidnapping in the rape of an 11-year-old Tacoma girl abducted on her way to school in May 2000.

 • One count of first-degree rape, three counts of second-degree rape and three counts of third-degree rape of a child for repeated sexual assaults of a teenage girl who lived with him from 2003 to 2005.

 • One count of failing to register as a sex offender, for not abiding by the conditions of his sentence for a 1990 incest conviction.

Heart

__________________________________

The man in chains in the photo, Terapon Adhahn, 42, was arrested a few days ago, after he told police where he left the body of Zina Linnek, 12, one of eight children whose family lives in Tacoma, Washington, where I was born and grew up, within a few miles of where three of my adult children now make their homes.  Adhahn left Zina’s body at a rest stop in an area of personal importance to me, at the entrance to Silver Lake on the Mountain Highway not far from Tacoma, where my grandparents built a cabin when I was a tiny girl, a cabin my parents still own which lies just below the home in which they now reside, and where our family regularly gathers.   Whenever we drove up to “the lake” when I was a girl, my dad would joke in a kindhearted way about people picnicking in the rest area, saying they likely believed they were out “in the wilderness.”  To my dad, only remote, nearly inaccessible, “rugged” areas qualified as “wilderness.”  We’d smile at my dad, the harried attorney become quasi-swagger-y like a mountain man, and we’d drive around the bend just moments away from my grandparents’ rustic cabin, complete with outhouse in those days, full of family memories and memorabilia, as it still is. 

The days of reminiscing as we drive past that “rest area” are history now; that place will forever be shadowed and haunted by the brutal murder of a little girl, whose body was discarded as so much rubbish there.

Zina Linnik

Adhahn stalked Zina, like any predator stalks its prey.  She had been in the alley behind her house at 9:45 p.m. on 4th of July, a hot night, as it turned out.  It is still a bit light out here at that time, not quite dark, and lots of people were outside watching the city-sponsored fireworks displays.  She’d been playing with her siblings and friends, who had run off to do something else momentarily, leaving her alone in the alley.  That’s when she was seized and drug into a gray van.  She screamed.  Her father heard and ran outside, just in time to see the van drive off, just in time to find one of her red flip flops, left behind.  He was able to remember a few of the numbers on the license plate. 

Police were able to track Adhahn down by way of these few numbers.  Adhahn lived maybe 10 miles away, in a part of the city near where I grew up.  Police searched his home and found girls’ underwear and other items.  Adhahn then told his attorneys where he left her body.

A Rapist, Not a “Sexual Offender”

As it turns out, Adhahn is a rapist.  I will not call him a “sex offender,” the description which is officially used for his acts, because that would place him in the same category as, for example, prostituted women in some jurisdictions.  He was no “sex offender,” he was a brutal rapist.  In 1990 he violently raped his 16-year-old half sister.  Since it was his “first offense,” he did only 60 days of jail time.  Charges against him were reduced to “incest,” and he completed 60 months of “treatment” for sexual deviance, then was adjudged a Level 1 sex offender, meaning those who evaluated him did not believe he was at high risk to reoffend. 

They were wrong, of course.  Adhahn has continued to reoffend and reoffend and reoffend.  He is small, 5′4″, and slight of build.  He was quiet, kept to himself, paid his bills on time, kept a clean house, and was hardworking.  He did handyman work and drove a tow truck.  He had served honorably in the military as an Army Ranger.

But in private, behind closed doors, in his bedroom and on the streets, he terrorized and raped and murdered little girls.  He took in one young girl he met through a friend, whose m