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Rape and Sexual Assault

“Intentional Sex Torts” — 2

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

Discussion

54 thoughts on ““Intentional Sex Torts” — 2

  1. Okay, I added a section I accidentally left out up there, “2. Uninformed Consent.” Also, I didn’t include the footnotes. For that you will have to go to the actual article (which you should, it’s worth reading).

    Posted by womensspace | May 12, 2008, 10:37 pm
  2. I don’t have time to get into this right now, but Wait a minute!!!

    One doesn’t need to be a lawyer to see some MAJOR PROBLEMS with this Tort bill,

    rape by fraud is One thing, government having the Ability and POWER to prosecute the communications in the consent prior to sex,

    thats a whole other ballgame there. I see So much room for abuse here, I don’t know where to even start, and lets remember,

    I am a radical feminist [maybe not alone the definitions of some but still],

    what happens if, lets say, a WOMAN doesn’t disclose that she’s had an abortion or doesn’t want children, and then the man finds later, that this to be the case and he is pro-life,

    that right there, could be grounds to sue for fraudulent consent, etc.

    Or what about a woman, lets say, who has worked in the sex industry or who has a criminal record,

    in other words, these laws, could have Huge implications that could further RESTRICT THE FREEDOM OF WOMEN,

    I will later, go through this with a fine tooth comb, but as a Leftist [not neo-liberal] independent, and as a feminist, I just see way too much similarities between these types of Torts,

    and the types of clergy/Mullah rules/laws regulating women’s sexual behavior. Way Way too many,

    I will come back and comment on several points. As you know I’m not big on government, damn sure not capitalist government,

    While I see some merits that are good in this Tort, there is, some problems, such as, the disclosing children, or disclosing ‘sexual fetishes’,

    That right there, should raise a red flag,

    WHO DEFINES WHAT A FETISH IS?

    Seriously now, if you don’t think these types of Torts couldn’t be used against women, think again,

    women have fetishes, hetero or lesbian, doesn’t matter, they may not be open about them, especially with a partner until maybe some time has passed, but to be sued, or held as a felon,

    NO, no I can’t support such Extreme measures such as this Tort, the Wording of it, just leaves Way too much room for abuses and government CONTROL OVER OUR SEXUALITY,

    IF, IF IT WAS STRICTLY IN ADDRESSING RAPE, AND HARM,

    that would be ONE thing, this goes Way beyond that. Way way beyond,

    it is to me, similar to some of the dangers in the UN Rights of the Child, while I support strongly, children’s rights,

    I have to draw the line, when Governments, take all power away from parents, such as, the rights to privacy of children, and on that one segment, there is so much room for abuse, not only abuse,

    but leaving our children wide open to the ones that would abuse them.

    Laws can be good, but when we leave common sense at the door, we’re in trouble,

    do we really want That much protectionism from the government? While I in no way, support the Privilege of men, and the crap they get by with,

    I don’t want, Government, having that much say so, over the very intimate details of my life either, especially my sex life…

    whats next, we have to be fully covered and only see female doctors because we might be harmed?

    Isn’t that what the mentality of the Taliban, and other similar legal systems?

    Give EMPOWERMENT to women, not PROTECTIONISM,

    especially not PROTECTIONISM that will do more to IMPRISON women,

    not free them.

    I’ll write more on this later, when I have more time, right now I’m in a hurry because I have to leave for appt.

    Tasha

    Posted by Tasha | May 12, 2008, 11:27 pm
  3. Whoah, ick, this was more than I needed to know, follow this link at your own risk:
    http://www.thefacultylounge.org/2008/05/pollard-on-in-1.html#comment-114344490

    Posted by enough by the trolls | May 12, 2008, 11:35 pm
  4. womensspace,

    Do you honestly, truly believe that, if a woman consents to sex with a man not knowing he views pornography, only to find out later that he in fact does and believes she would not have consented otherwise, that she has a right to bring legal action against the person with whom she initially consented to sex?

    Should all men just have pamphlets that list everything you’ve said at the end of your post and hand them out to every woman he flirts with? This is the slippery slope of the legislation, and it is unbelievably absurd.

    I’m surprised you didn’t add “The person posts or has posted on BigLawBoard” to that list…

    Posted by man | May 12, 2008, 11:40 pm
  5. One more thing–terminal illness,

    what happens, if you don’t KNOW you have a terminal illness before hand?

    It does happen, do those people deserve to be sued as well? [male or female]

    I don’t support nor will I ever, the justifications that men use, to lie and deceive, and on some cases, yes, there needs to be some civil liability,

    but there is just too many red flags in this Tort. For Women, as well as men,

    and I could just imagine, how these Torts could be used against younger women, teens included.

    I hate patriarchy and male privilege, but I’m not going to lump my vote in, supporting another form of tyranny for another….

    Tasha

    Posted by Tasha | May 12, 2008, 11:54 pm
  6. Tasha, you should read the entire article, really. It’s worth it.

    Re terminal illness: the burden of disclosure is born by the person with the knowledge.

    Informed consent analysis requires recognizing a duty by someone to make sure that consent is informed, and a consistent, clear duty rule is superior to a case by-case review of the fact involved (patent or latent) to determine who has the duty for the same reasons that strict liability is superior to negligence when one party has superior access to information about risks.162 From an economic standpoint, the duty should be imposed on the person with actual knowledge. That is, liability should be placed on the “cheapest cost avoider,” which is the party who has easier, cheaper access to the information needed to accurately calculate accident costs and avoidance costs.163 The superior rule would place the burden of disclosing material facts to a sexual transaction on the person who has actual knowledge of such facts,164 so that the other person can conduct his own subjective cost-benefit analysis before consenting. This rule would require each person to obtain informed consent for sexual relations or risk tort liability.165 This is consistent with the informed consent rule as applied to doctors, and properly places the burden on the party with superior knowledge.

    The truth is, most perpetrators of sexual autonomy misappropriation are probably aware that they are not respecting their sexual partner’s right of unfettered sexual self-determination, and are choosing deception to attract partners who would otherwise reject them. Perhaps the informed consent analysis is best conceived as creating convergent analysis between the Restatement’s intent to offend construct and true consent, because of the proof burdens in fraud analysis. However, even assuming that defendant did not intend to take advantage of plaintiff’s ignorance, imposing the cost of uninformed consent on her is still appropriate. The paradigm of reciprocity holds that, as between two innocent parties, the person causing harm should pay the costs of harm as opposed to the person who is harmed, particularly where the risk created by the injurer is disproportionate to any risk created by the victim.167 In the sexual context, each partner is uniquely aware of information about herself or himself that bears on the other’s emo tional (and physical) risks, and this information often is not accessible through any other source. The sexual battery paradigm proposed herein would create a duty not just to avoid lying, but to disclose all facts that one could reasonably expect that a sexual partner would need to know in order to make a truly voluntary decision about whether to become sexually involved.168 Such an analysis could serve to encourage candid communications in romantic relationships. This could prevent miscommunication and discourage intentional deceit, as well as protect autonomy and avoid emotional injury and sexual disease transmission.

    intentional tort law’s protection of autonomy should be consistent, whether the risk is economic, physical or emotional. The current law’s failure to protect sexual autonomy is not consistent with the prevailing sexual consensus and undermines the law’s consistency while impacting social norms contrary to public policy. Cases of sexual autonomy infringement grounded in battery law should be left to a jury based on social expectations, not dismissed as a matter of law. The importance of sexual autonomy, and the very serious harms that can flow from interference with it, justify adopting a civil sexual battery analysis consistent with traditional battery law, fraud jurisprudence, and the doctrine of informed consent, to allow a jury to determine each case based on minimal social expectations of interpersonal civility. Adopting the analytical paradigm proposed herein will more fairly reflect American sexual norms, will enhance protection of sexual autonomy for all persons, and will encourage candid and healthy interpersonal relations consistent with public policy.

    Hey man, could be a nice incentive for men to avoid porn, might make that board kind of quiet place, eh? 😉

    Posted by womensspace | May 13, 2008, 12:07 am
  7. womensspace,

    I’m not sure you addressed my query…

    You realize not just men, but women and everyone would have to have these pamphlets of information to hand out before any sort of sexual encounter, detailing everything you listed! What do you think of that?

    Posted by man | May 13, 2008, 12:23 am
  8. I posted this on the other tort discussion then thought, might be better to post it here,

    before I go on, I wanted to clarify something so as to not cause confusion,

    I have said a couple of times I didn’t believe that laws would work, and it also is the reason, I do have strong opinions against this Tort Sex law–especially after I’ve read it in its full.

    Remember, I see things, not just from a radical feminist perspective [especially in regards to the porn industry, child porn and trafficking–because I see it also from the economic stratifications, meaning class],

    but I see these issues from a CLASS PERSPECTIVE so they will be, many times, contrary to the general consensus so to speak. I just want to make that clear, because the intent I have here is not to cause division or to cause upheaval over this,

    but just to relay where it looks from a class perspective, because simply put, the majority of LAWS meant to protect women, have not, in reality, worked in the same ways to protect Low income women or even women of color. And that is Why I don’t have a lot of faith in the system, nor do I trust them, not in the least.

    Many may see this Tort Sex law as good for women, I see it, as maybe good for some women but harmful to thousands of women, especially single women who are low income, etc., because those who have the ability to sue and who often do, do so out of motivations for greed.

    And government [because of the elitism and CAPITALISM], yes, I know, coming from Leninist perspective here, but the elites, and it doesn’t matter if they are neo-cons or neo-liberals, its all the same, the stratifications in law work, more to ensnare the working class, than to assist them, women included.

    And I do believe I said this on one post before, in fact I’m sure of it, and that is how the Child Protections Laws that are Supposed to protect women from child abuse, have been used more, to harm women, to enforce rigid patriarchal expectations on women, especially single mothers and low income women–even more so for those who are very poor, and its just amazing how laws are twisted, to go after the underclass and working class,

    so my lens on this issue will be quite different from many here, and I’m sure, elsewhere,

    therefore, in regards to laws, such as sexual harassment laws in comparison to the Tort Bill and how it could, mean changes for women,

    my reply as follows:

    in regards to sexual harassment, thats because [as for laws changing behavior–though, lets not get too excited, rape in the military is not only occurring but with impunity, so the laws don’t always work, and sexual harassment, including lower pay for women and the exploitation of women in the workplace, especially low income women–are occur Daily, in this nation as well as internationally–

    We just don’t hear about them as much because, o.k., here’s my gripe about the reliance on the system–the laws, work mostly for those how have the Financial ability to enforce those laws, that includes harassment,

    low income women and single mothers, UNLESS there is a class action, often times will find, there is no relief–and on That I have personal experience in dealing with…in service sector jobs, sexual harassment still goes on, and with impunity.

    That said, there is still, a huge difference in sexual harassment laws–compared to Tort laws in regulating intimate conversations leading to sexual relations.

    In sexual harassment, its do this or get fired, or creating an environment that is hostile, etc.,

    it, someone said, do this, have sex with me or else, then that might fall into the same as sexual harassment–

    but, not disclosing all details [and the expansion or, no better yet, how those significants can be INTERPRETED is in no way the same as laws against sexual harassment.]

    Rape fraud, yes, I think we do need laws that victims of rape can pursue justice and the perps be held accountable–

    but the Tort laws, is not about going after rape, its going after consent that is not fully, or the facts fully disclosed before hand–and its, I think, well it entails too much, so thats the problem I see in it–

    its like, o.k., lets say, we have Tort laws and everyone has these pre-sex contracts, which eventually, would have to be on paper–making sex most surely, a commodity to be bought, sold and traded [which could be used, to protect even more so, prostitution and even trafficking, using the commodities argument],

    but what next?

    Children suing parents for being poor? Hey, you knew you were poor or could be poor, or could wind up disabled or could lose your job and we have suffered emotional damages as a result so now we are suing you, because we did not have consent to this, etc etc etc

    Some may laugh at this analogy but if people can think it [and people have said it], then it can be done.

    I think the problem with the Tort bill is that it makes the issue of consent even more of an area that people may just not take seriously–that it could do damage,

    in other words, have a severe backlash, and against women more so,

    and in one aspect I see this being a very Strong possibility, is in the ability to sue women,

    if they get pregnant and then have an abortion, and the man says, “I wasn’t informed of her pro-choice and such and such and I”m pro-life, and therefore, this is severe emotional damage because I too have to live with it, on my conscience, etc., and he could turn and sue her,

    and under this Tort law, YES, she could be very well held accountable. If we give up privacy rights over our sexuality and sexual behavior to the government, then we should be ready,

    to give up those privacy rights to the government, public and juries and sexual partners when it comes to the issue of abortion–

    can’t have it both ways.

    I’m not trying to be offensive, Heart, I am truly serious on this, I see this as a very dangerous precedence for women and men, and I truly don’t believe, its going to limit rape [because rape is about power and violence, not sex] nor is it going to stop men from supporting the porn industry–there are plenty of women out there that have no issue with porn,

    I think there is other solutions, one, empowering women and I don’t believe we empower women with protectionism, not only that, but people not being fully upfront, or disclosing everything, thats not just in male to female relationships, thats in lesbian relationships, friendships, etc.,

    where does it end? Once laws like this take sway–where does it end? And how far do we let the government into our lives,

    I think it IS tragic, that the state of this nation today has become so unethical that laws like this are even considered or even possible, because of the harms being done…

    but its not just men doing these harms, as far as intimacy goes. Its the result, some of it of the free sex culture from the 60s [well even before then] and I see these Torts as a means to curb that culture and to reverse it,

    and on parts, yes, there should be some reversal because it has caused problems in our society, but,

    its also caused some good things too, sexual freedom that is. Good things for women, I would hate to see us go back to some archaic time, maybe this law isn’t like, forcing us into chastity belts, not that extreme,

    but a psychological chastity belt, is just as suffocating to us and I guess thats what I see in this…

    and its always the Hierarchy that is setting these laws that govern us, a hierarchy mind you, that is extremely patriarchal–sure, in some courts, this law could work for feminists,

    but could you imagine, Tort Sex laws, used in South Dakota?

    Next thing you know, there will be shot-gun weddings again, and being forced to marry the man who raped you,

    I would really hope, that women truly think, long and hard on this tort, including the women who drafted this legislation. We need rape fraud laws, on that I concur [wisely written],

    and we need stronger consent laws, that Enforce, no meaning no, and stronger Penalties against child rapists [what we have today is a joke], stronger penalties against supporting industries that profit off of such

    those laws I would support–in other words, Go after the rapists and child rapists,

    not regulate and strictly monitor and using legal means/torts, to ensnare citizens under a type of puritanical fascism, which due to patriarchy, would be more worse on women. Lets not forget that men, by far, rule the legal system–I think the comments made about women on BLB is proof of that–

    penalizing people, while rapists and women murderers and pornographers go on with business–with impunity or with little to fear.

    I see more innocent people being penalized [and money to boot, because Tort laws, is money damages] for things that most of us have done one time or another [we have all lied, to a partner about Something],

    but I don’t see more stronger sentencing or anything that is going to end violence against women. Maybe some cases, yes, but some cases in the midst of hundreds that could be abused, while men still rape and people still hurt children,

    doesn’t seem a good solution to me.

    Some good things in the Tort, not saying there isn’t, but I just feel it should have some limits to what is considered intent to do harm.

    Tasha

    Posted by Tasha | May 13, 2008, 3:34 am
  9. I’m thinking about it, man.

    People wouldn’t have to do anything. They could continue to do whatever they want to do and take their chances. But just knowing that deceiving a potential partner in these ways could be a problem might be a good thing.

    My educated guess is that by far, most women are raped or sexually assaulted in their lifetimes. I don’t think it’s 1 in 10, or 1 in 4, or 1 in 3 or even 1 in 2. I think it’s by far most because almost every woman I know has been raped/sexually assaulted or incested and by far none of them ever told or went to the police. Most were raped/assaulted by men they knew/dated. I want that to end.

    If men are on notice that if they aren’t straight up about, for example, the things on that list, they could be in big trouble, I wonder what affect that might have. Why would they hide these things from a potential partner? Other than to, honestly, deprive her of her sexual autonomy? Defraud her?

    My hunch is women would be/will be much more inclined, than men, to be straightforward about all of those things.

    Why wouldn’t people who are going to have sex with each other want to know those important things about the other person?

    I’d like to hear others’ ideas about this– I’m still formulating my opinions.

    Posted by womensspace | May 13, 2008, 3:35 am
  10. Not sure if my last post went through Heart–my other computer crashed,

    in case it didn’t, I wanted to clarify, so it doesn’t cause confusion on my part;

    I did say earlier, that I had reservations about this bill and if this was a viable solution to the problem of rape and male violence, etc. I do support stronger penalties for rape and date rape and even rape-fraud,

    but remember too, I look at these issues not just from a feminist perspective, but a CLASS perspective, and I know, how laws meant to help, are so often used, to work against the working class Especially low income women, single mothers, etc.

    So my lens is going to be a bit different.

    Anyway, where I see, [and I do hope the other post gets through, if not on this thread, on the other thread], where I see potential problems on this,

    is, the issue of privacy, and how, especially Sex Tort law will, and you can just be assured, will be used,

    to go after Abortion rights, and here’s why…

    there have been cases where fathers have fought abortions, what happens, when a father of a child, finds out, that the woman, lied to him prior to sex, that she was pro-choice,

    and he then turns and sues, and under this Tort Bill he would have Every right because Would he have given consent if he knew, at a later time, he would have on his conscience the abortion of a child, and he is dead set against abortion…

    don’t you know, that in, lets say, South Dakota, this Tort Law, if ever passed there would mean opening up legislation and even more restrictions on women?

    Because this Tort Sex bill isn’t about ending rape, its about regulating intimate conversations/communications prior to sex, in disclosure, etc., and part of those communications is in regards to birth control, what if, etc.,

    most, usually will ask about birth control–but not always, will ask about their beliefs on abortion. If we have had cases Already on the books, to this regard,

    this Sex Tort law, is going to give the pro-choice men, ample ammunition, to use against women.

    Anyway, read the other post–if it does go through, [I sent it to both threads], because I go into a little bit on the class aspect of it, as well as why I don’t believe this Tort, though well intended [and on some parts I concur, not on all however], will change,

    the attitudes towards porn or the numbers of Rape [which btw, isn’t Sex, its about Power and Violence],

    going down because a man intent on rape is going to rape, he doesn’t CARE about consent,

    even if he Did sign a contract, and not only that, this Tort, because of the patriarchal system as it is, will be used, as a backlash against women.

    I can just bet, more men will sue women, than women men, because it takes Money to be able to sue…

    and from a class perspective, I sort of cringe when I think, of the men that would sue lower income women or single mothers, using the Tort Sex bill to do so,

    and it will be used to ‘regulate’ women’s sexual behavior, more than mens.

    And tragically, the men who scoff at rape and who scoff at the victims of the porn industry/children, etc., and the whole rape culture, while sure, they might think twice before lying to a woman,

    what will happen, is that they’ll pull up things the woman said, and turn and sue her, under the Tort,

    look up the Tort laws on domestic violence, Alabama I believe, and how those same Tort laws were used to defend domestic violence by men, and why domestic violence had to be taken out of Tort and into Criminal [due to the violence]…I was just reading that yesterday.

    Not sure if they were completely taken out of Tort [I didn’t like do a break down of the entire brief but got the gist of it which was enough at the time].

    Tasha

    Posted by Tasha | May 13, 2008, 3:58 am
  11. correction–not that its that important but,

    on post number 9–in regards to CPS,

    that should be, laws meant to protect Children, being used against women, etc.,

    examples of this btw, just so you know, I’m not like just pulling straws, are the cases of children being removed due to poverty and homelessness, if need be, I can post on this, empirical evidence, etc., its not just opinion,

    because CPS, while don’t get me wrong, there is A lot I am strongly in support of, as well as in support of the UN Rights of the Child, I just am not in total support of every tenant of it, because it leaves room for extreme abuses and state control over children,

    My solution would be, to have both human rights for children respected AND human rights of parents respected, and both written out clearly, that way there is balance,

    anyway off topic here, but I did find this, the Sex Tort law, is based, upon laws, now get this,

    that were to protect the Father’s PROPERTY, but they were called, The Wrong Seduction Law,

    anyway, here is the article, its written well and opens the door to some good feminist analysis on this issue, especially pertaining to the patriarchal roots of Tort Sex laws.

    http://writ.lp.findlaw.com/grossman/20030211.html

    now this case was back in 2003, and in the state of North Carolina,

    but something VERY important that was said here, about this law, and that was,

    when these Seduction laws were passed, they were meant to ‘protect the purity of young daughters from corruption, etc.’

    and that, women who did not have such purity so to speak [not in the exact wording] but they didn’t have the same grounds, etc., for going after wrongful seduction…

    here’s where that Privacy issue comes up again, if we have to disclose, and feminists did fight and I think it was related to Tort laws, not sure, but fight for women’s right to privacy in courts in rape cases,

    when the history of women’s sexual life was being used against her,

    under Tort Sex law, this could too, open up some dangerous doors there as well…when we are getting into issues of Consent.

    I also wanted to clarify, I do support Rape Fraud law, but, not a law that would put someone into prison, for not disclosing every detail…ONLY if, it was a deliberate attempt to commit Rape, and only then.

    How such a law could be drafted however without room for abuse, or putting people into prison for lying or not fully disclosing, I think would be difficult, just my honest opinion,

    I think, though, what angers me about all this, if our court systems Would have prosecuted so many cases that were just blatant obvious rape, especially acquantance [sic] rape, we wouldn’t have the need, for Tort laws,

    and I’m talking, the cases in colleges and in athletic functions [why the need for Jeanne Cleary Act that still most schools can find loopholes in not abiding by],

    and so forth, but in these cases, they always twisted consent, especially to protect elites. [especially elites who committed rape]

    But, lets not forget too, that in some of the most rigid countries that regulate sexuality, in extremes, including Forced Segregation, Forced coverings in the extremes, Forced no education for females, etc.,

    in those countries, the RAPE rates are high, and women are held accountable and even stoned,

    the Prostitution rates are high AND the trafficking [Iran included],

    and the Porn industry, though black market, thrives there….

    there is enough feminist reporting of such, in all these countries, and the laws, that are supposed to guard and enforce purity and strict behaviors,

    are used to punish the women. Pakistan’s prisons are full of women,

    there, their crime, being raped.

    Because the Burden of proof is on them, and adultery is also, punishable, for women, moreso than men, so, laws regulating morality, to end rape,

    do the opposite. They just punish women, for rape. In this country, under a Sex Tort bill, it might not be that extreme,

    but I would bet, during the proceedings, the sexuality and sexual past of the woman, will be drug up and will be the grounds of so much abuse,

    and it will be, a type of psychological rape, I don’t know if there will be the same safeguards for women, in civil cases.

    Not that there’s a hell of a lot of safeguards in criminal…for women, or for, a lot of men for that fact. [wrongful arrests, other crimes, etc]

    Posted by Tasha | May 13, 2008, 4:55 am
  12. Heart,

    Your list of “material” lies illustrates exactly what is wrong with this law. Those are the things you find “material.” MANY people, men and women, would disagree with items on your list or want to add several others. That’s the problem. Who’s standard is “reasonable?” What might be a reasonable omission, exaggeration or misrepresentation to some might be a deal breaker to others.

    This also gets into privacy matters. Yes, if a person has an STD, he or she should have to disclose that (hint: they already have that obligation). But should a person have to disclose that they have cancer and only have a couple of years left? Should a person have to disclose that they have been a victim of rape or molestation? Should a woman need to disclose if she has had or is willing to have an abortion?

    Even the more serious lies on your list seem problematic. For instance, I see a huge difference between failing to disclose that you previously committed rape (I’m NOT trying to defend rapists) and pretending that you are somebody’s spouse/significant other.

    Posted by 12XU | May 13, 2008, 3:53 pm
  13. but the Tort laws, is not about going after rape, its going after consent that is not fully, or the facts fully disclosed before hand–and its, I think, well it entails too much, so thats the problem I see in it–

    The theory is — and I agree with it — that when someone is deprived of her sexual autonomy, or when someone has been fraudulently induced into having sex — told lies — she has been raped.

    The list of things I posted at the end of my post is what comes to my mind as things that, if they were not disclosed to a partner, might amount to rape.

    When I say “fetish,” I am talking about things like raping animals (and calling it “sex with” animals), sadomasochism, that kind of thing. Do most reasonable people want to have sex with someone who routinely or even in the past has had sex with animals? Do most women want to get involved with, say, some piece of work man who likes to lead women around on leashes or chain them to his bed? Would anyone really want to have sex with guys like the guys I blogged about here?

    Do reasonable persons want to have sex with someone who has a history of “blood play”? Or fetishes around other bodily fluids/secretions?

    Does a reasonable woman want to have sex with a man who is obsessed with pornography? We know, as women, that most of the time, and if not the first few times, then ultimately, a man who uses porn isn’t having sex with us. We are a warm, dark place to stick it and his mind is on the alternate sexual universe he has created where he is the king on the throne and women and girls are his sex slaves. Who wants to have sex with that, or be ripped off by having entered into a sexual encounter and then find out after the fact?

    Isn’t it reasonable to expect to be told, before you have sex, if you’re a lesbian woman, that your potential sex partner was born male? Lived as a man for two, three, four, five decades?

    Would a reasonable woman meet a man she met on the internet for a sexual encounter or relationship if she knew he had met hundreds of women across the country and had “married” some of them?

    Maybe a reasonable woman *would*. But the decision should be hers to make ahead of time.

    I agree with a lot of what you say, Tasha, but. What I like about this is, it names something we all recognize as women, which most men don’t recognize at all, and that is clear and obvious by the responses of male attorneys that we’ve had the misfortune to read so far. They don’t like this at all. They don’t *get* it at all. That tells me it isn’t women who are raping men, it is men who are raping women in this stealing-our-sexual-autonomy, fraudulent inducement manner. Until the courts recognize that women can indeed be raped and not recognize it until after the fact, or that women can apparently consent, but it wasn’t really consent, we’ll have the situation we have now — most women raped with no recourse.

    I think the value of this article and these measures, much of the value, is the way these ideas can shape public discourse around rape and consent.

    Tasha, re your last comment, Sacks is not proposing resurrecting the old “heartbalm” laws, which is what you are referring to re the 2003 South Carolina case. This is not the same thing.

    I’m really hoping others of you will offer your thoughts and experiences here. I don’t have time to go through all of your comments, Tasha, but there’s a lot you have wrong there, at least I think, about Sacks’s proposal. I’d like to get back to what I have actually posted from her article and focus on that. We all know that anything we do under male heterosupremacy can and will be used against us. If we enact laws that provide for joint custody of children and force men to step up and take responsiblity, they find ways around those by agreeing to joint custody and then foisting our children off on others, sometimes scary people, sometimes a string of girlfriends. If we enact laws around domestic violence, we end up with men beating the crap out of us and then we fight back, they call the cops and we get arrested. Our work to eliminate inequities in divorce get used against us by men in ways that make our lives hell. MacKinnon talks about this in the article I quoted in the first Sex Torts post — that whatever we write into law, ultimately male supremacists might be able to find a way to use our work against us.

    But what we write into law and about the law *does* shape public discourse around the issues that are core to us, as feminists — rape and sexual assault especially. And that alone has tremendous value.

    So if we could get back to what I posted in my post. We all know laws can be used against women– all women. They aren’t just used against poor women or women of color, but all, in all sorts of ways, the stories I could tell would curl your hair.

    I also think this kind of legislation might offer protection to sex workers in ways they aren’t protected right now. Think about it. Of course, it would not help prostituted women in the most desperate of circumstances, i.e., street prostitutes. But it could be useful for women who work for “escort” services, “call girls”, women who work in brothels. These women literally take their lives in their hands every day– this kind of legislation might provide some safeguards for them in that their johns would *have* to disclose things about themselves that make them dangerous.

    Tasha, not to offend in any way but I’d like to make some space for other women to respond (and men if they know how to behave themselves). You are prolific, and you have a lot of good things to say, but I’m afraid so many, many words might end up ending the discussion before it begins. I think the most beneficial discussion will happen if we can figure out how to focus on one issue or a couple of issues at a time.

    Heart

    Posted by womensspace | May 13, 2008, 4:07 pm
  14. In thinking about this issue this morning, I figured out what was wrong, about this Tort Sex Bill–

    and where, it is, rather than EMPOWERING for women and in where it is NOT in contribution [worded badly I know] of Autonomy,

    not INDIVIDUAL AUTONOMY OF WOMEN,

    where it pertains to CONSENT…

    [caps for emphasis]

    Is, this:

    the tort bill basically, in laymens terms, gives remedy for deception prior to sex, etc.,

    However, here is where there is fallacy–UNLESS,

    THERE IS WRITTEN OR CLEARLY STATED BOUNDARIES, FIRST,

    in a relationship [remember Tort Sex Bill is about sexual relations and consent],

    then, there can be no violation of boundaries, even IF deceit is used,

    follow me here…The problem I see with this Tort Sex bill is that, it is based on the Presumption that the partner, who is violated, for something like, whether the man watches porn or not, just using an example,

    IF this Boundary is not established from the beginning, then is he/or she, violating that person’s autonomy?

    NO.

    UNLESS, there is reasonable KNOWLEDGE that the person has established a boundary IN regards to what they want to consent to, or what TYPE of person they want to consent to, then there isn’t I don’t believe, grounds to say, my Boundaries and Personal Autonomy have been violated…

    in the issue of Rape, that is Forced Violence, a Deliberate Violation and Assault on a woman [or man or child], and it is not in the same thing as,

    getting sex using fraud.

    While Yes, it is a violation, it is Only a VIOLATION and Violation of Consent, if such Boundaries are established, and both parties KNOW those boundaries…

    Rape Fraud, such as the man posing as the brother or a man posing as a doctor, do not fall into the same category as two people, who meet be it for one night or for five years, and one is lying about who they are…

    Its not the Tort Bill ‘Idea’ that is wrong, its HOW its written out…

    in my opinion,

    because like, sure, if a man is lying about having more than one wife or is going around raping and killing, Thats not the same,

    as a man, not disclosing or a woman, for that fact, certain details before sex…

    IF however, a woman States from the Beginning, that she is against porn or a man States from the Beginning that he is Pro-Life [using both here], just examples,

    and THEN, the other partner LIES TO COMMIT FRAUD/AND DECEIT

    THEN ITS A VIOLATION OF BOUNDARIES, VIOLATION OF AUTONOMY, AND YES, IS A FORM OF RAPE….

    BUT ONLY–IF THOSE BOUNDARIES ARE ESTABLISHED.

    the problem with having penalties without Prior knowledge of boundaries in a RELATIONSHIP CONTEXT, which is Very different from Rape and including Date Rape–

    is that Anyone could have the ability to give consent, then later, say,

    Oh, wait, I didn’t know such and such and therefore, I feel violated, etc etc and am going to sue

    With STDS, thats Deliberate Attempt to not only Do harm but put one at Risk, Physical risk,

    but using Tort to go after Emotional Damages ONLY–then that is, I think,

    if you are going to go after that like they do in business, then there is responsibility on BOTH SIDES,

    meaning, in Business [if we are going to treat sex as a business arrangement, using Tort laws to do so], then in business,

    the Contracts are one, Written, two, they establish from the Beginning the Boundaries of those contracts, and ONLY if those Boundaries are Violated by fraud, etc., are they then liable to be remedied…

    IF We as Women want our Boundaries Respected [and we should] then to really have TRUE AUTONOMY

    we must then, be Setting those Boundaries firmly, from the get go…not just relying on government, when we don’t set those boundaries of values, etc., and then we find later that we regret giving consent, or that we Wouldn’t have given consent IF we had of known,

    but to KNOW, one must set some Standard of what is acceptable and what isn’t…

    we can’t just go around expecting our partners, male or female mind you, to just KNOW beforehand, what our Boundaries are IF WE DON’ T MAKE THEM CLEAR,

    and if, those partners violate our sense of values or boundaries, in issues of beliefs, or even past histories, etc., and if we didn’t give them NOTICE first–

    then our Consent is not violated,

    its too much, to expect people to read our minds, so to speak, and it does NOTHING to affirm or EMPOWER WOMEN’S AUTONOMY,

    and in fact, relies on a Victim mentality…

    That is NOT liberation, nor Emancipation.

    If a man, attacks me and rapes me, that IS a violation of Personal Boundaries, no need for explaination there [I would hope not, IF I say NO to a partner, and they force me anyway, THat is a violation of personal boundaries and that is RAPE, doesn’t matter if I’ve been making out with them, if I say NO and they force me or I them anyway, That is Rape,

    If someone has sex on someone that Doesn’t have the Ability to make Informed Consent, that is Rape [speaking of children here],

    But as Adults, in Relationships, Unless its Rape by Fraud, and for Rape by Fraud to occur, it would have to be a Deliberate Attempt to defraud someone, violate their boundaries knowing FULL WELL WHAT THOSE BOUNDARIES ARE,

    under this Tort, it doesn’t go into the person who is violated, Establishing those Boundaries in a Relationship setting Therefore, there is Way too much room, for abuse of this law.

    If I meet, a man or woman, and I find later they are buyers of child porn, I don’t have grounds to cry Foul,

    because I gave consent,

    UNLESS, I TOLD THEM, VERY CLEAR, BEFORE SEX, THAT I WOULD NEVER SLEEP WITH ANYONE WHO BUYS CHILD PORN,

    AND Then, if they lied, Then I would have grounds.

    NOT until then,

    and IF that be the case, then there would have to be Proof–for it to be Just, the Remedies that is,

    and for that, I would think, it would need to be in Writing, because I would hate to think we prosecute based ONLY on hearsay, without Evidence,

    even in Rape cases, there has to be some evidence…I can’t just go and say, so and so raped me, and the courts just rely on that and then they throw the man in prison…

    but under this Tort Bill, the way its written, thats Exactly what would happen,

    and thats not Justice,

    for WOMEN, OR MEN, FOR ANYONE.

    Autonomy is just that, Autonomy….but to Have Autonomy, one must make their Autonomy Clear, not just presume, that another knows the Personal boundaries and Intimate boundaries in intimate relations…

    No one violates my Autonomy in a Relationship [other than using violence or lying in a way that would cause me physical harm, such as, deliberately giving me HIV or something], but like based on Values–

    no one violates my autonomy if I am silent and don’t say anything until After the FACT,

    and if That happens, I’m just as responsible.

    IF I say, here are my values and boundaries and if then, that person LIES, Then yes, I would have grounds, for remedy…

    but Proving it, I would think, would be the utmost importance…

    the problem with the issue of Consent in Intimate Relationships, such as dating, etc., [not in Rape, again, Rape is Violence and Power, not sex],

    is that Consent is a Two way Street…the protectionist angle of this bill, is more like a Puritanical Protection of my virtue, for Who? The STATE?

    NO, Personal and Individual Autonomy, should be Established, not just assumed, and we Don’t fight the patriarchal conditioning of women by playing into the victim role and wanting a patriarchal state to protect us and keep us from harm…

    or by not taking Some responsibility as HUMAN BEINGS WITH HUMAN RIGHTS, to be Vocal about our Boundaries…BEFORE WE GIVE CONSENT.

    I know I could have written this better, but thats what I see is wrong with this Tort Sex Bill.

    Tasha

    Posted by Tasha | May 13, 2008, 4:09 pm
  15. IX2U: I see a huge difference between failing to disclose that you previously committed rape (I’m NOT trying to defend rapists) and pretending that you are somebody’s spouse/significant other.

    Can you expound, IX2U? What is the huge difference you see?

    Re who decides what lies are material, I think the finders of fact, including juries, will decide that, no?

    Sacks makes the EXCELLENT point (and again, I think everyone who comments here should at least take a look at her article) that what we see in the media, in publications, in movies, in porn, especially, on the internet, reflects, not the sexual standards or lives or expectations or ideas of the general public in the United States, it reflects the habits/lives/ideas of a very small minority of mostly very young people. Most people in the United States are monogamous, for example. Most people are not having ongoing sexual encounters with lots of different people.

    Here’s a quote:

    We live in an era of legal nonchalance relative to a dangerous form of personal rights infringement: sexual autonomy misappropriation. The concept that “all’s fair in love” and “everybody’s doing it” are exploited in the media. despite being contrary to the prevailing sexual norm among Americans. The legal norm is “caveat emptor” in the marketplace of sexual relationships, which fails to deter blameworthy interpersonal deception. The prevalence, and resigned acceptance particularly among American youth, of fraudulent inducement of sexual relations is disturbing. [The law as it stands now] is bad public policy and has supported the creation of “false” sexual norms that threaten this country’s economic, cultural, psychological, and physical wellbeing. The law should be reformed to reverse this trend….

    The law is not the only or even primary tool to address the problem of irresponsible sexual conduct. But the law can be improved considerably to educate the public and to further social policy. Sexual autonomy infringement should be actionable as battery actions to expose prevailing norms, sanction wrongful behavior, and shift the costs of socially destructive behavior to the perpetrators, instead of allowing cost-externalization as the current law does. This paper does not argue for the revival of the heartbalm torts. These torts were dismantled to a large degree in recognition of their propensity to perpetuate anti-feminist sexual stereotypes, which may cause social harm per se. This paper argues that cases of sexual autonomy misappropriation should be analyzed in accordance with gender-neutral, traditional battery doctrine, and the fraud and informed consent exceptions to the defense of consent. This would serve to protect the sexual autonomy of men and women alike, consistent with the feminist goal of gender-equality….

    The law’s [current] “caveat emptor” approach to sexual misconduct [sends] a clear message to the American public: the government is unconcerned about unfair or manipulative sexual behavior, even when one person misappropriates another’s sexual autonomy via blatant fraud. … The current legal norm does not accurately reflect prevailing sexual norms, yet influences people’s perception of sexual norms. Comprehensive research reveals that the vast majority of Americans are monogamous; yet, young Americans are sexually active at a younger age, have more sexual partners than in prior generations, and believe that dishonesty in sexual relationships is typical. The false sexual norms created by the media’s portrayal of atypical sexual behavior as the standard, and a legal norm of “caveat emptor,” probably played a role in creating sexual attitudes and behaviors that have given rise to an American sexual disease epidemic.

    …In shaping jurisprudence relative to sexual conduct, it is important to consider the law’s impact on norms, and in turn, norms’ impact on human behavior. Despite controversy regarding the law’s influence on human behavior, there is substantial empirical evidence that the law can create and shape social norms to advance public welfare. In the past decade in particular, it has become accepted that the public’s perception of social norms impacts personal choices substantially, perhaps more so than legal sanctions per se, because people are social creatures who place enormous value on one another’s esteem. The law’s failure to sanction behavior that damages others can impact how people view such behavior emotionally, cognitively, economically (based on the rational actor assumption), and morally. For example, legislative efforts to control other types of behavior not intuitively amenable to rational choice, such as drunk driving, have been very successful.

    Posted by womensspace | May 13, 2008, 4:27 pm
  16. I can expound. Let’s consider an example. Jeff and Jack Smith are identical twins. Jack is married. Jeff is single. Jeff pretends to be Jack to have sex with Jack’s wife. Jack’s wife is a willing participant. She engages in sex voluntarily. However, she did NOT consent to sex with Jeff. She willingly engaged in sex with him, but only because she believed he was Jack. He pretended to be a different person. He did not merely pretend to be a himself but with omitted or embellished attributes. Now consider a different example: two people, Sam and Pat are both unmarried. Pat was convicted of rape 15 years ago. The two have gone on several dates and have gotten to know one another fairly well. The two really like each other in fact. They have shared personal information, but Pat is not sure that the time is right to reveal the past crime conviction. The two eventually have sex, but not until they had known each other for several months. Sam, while ignorant to the fact that Pat was convicted of rape, knew exactly who s/he was sleeping with. S/he just didn’t know every detail about Pat’s past. Now, maybe the detail s/he didn’t know about Pat would be a deal breaker. But there is a huge difference between not disclosing all relevant facts about yourself and pretending to be a completely different person.

    Posted by 12XU | May 13, 2008, 4:40 pm
  17. Tasha, you write (in a post that is in moderation):

    the tort bill basically, in laymens terms, gives remedy for deception prior to sex, etc.,

    However, here is where there is fallacy–UNLESS,

    THERE IS WRITTEN OR CLEARLY STATED BOUNDARIES, FIRST,

    in a relationship [remember Tort Sex Bill is about sexual relations and consent],

    then, there can be no violation of boundaries, even IF deceit is used

    This is kind of what I mean, why we need to get back to what Sacks actually has written. This is covered in what I’ve already posted from Sacks article. Sacks would place the onus on “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.

    and

    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.

    If you read the other parts of Sacks’ article, she says the onus is also on the person who *has* the information to disclose it. It’s not up to the person who doesn’t know to guess.

    We won’t get anywhere if we aren’t focusing very specifically and carefully on what Sacks has actually written.

    Posted by womensspace | May 13, 2008, 4:42 pm
  18. Yeah, that’s what I thought you’d say, IX2U.

    NO.

    The time to disclose that you are a rapist is before you try to get a woman into bed. To my mind a man has NO right to withhold from a woman the information that he has raped a woman in the past.

    NONE.

    ZERO.

    EVER.

    This stuff about, “well, it’s not the right time.”

    Right. It’s not the right time to disclose until she has arranged her life around your relationship, has given you body, has become vulnerable to you and disclosed intimate information about herself, then, when it’s REALLY hard and costly and disruptive and painful, you decide it’s the “right time.”

    And men do this ALL of the time in various ways, all of the time.

    What you have described is RAPE.

    The woman did NOT know you, generic “you” . She did NOT know who you were. You withheld crucial information from her that if she had known, she would in all likelihood decided not to have sex with you. Some women MIGHT still have sex with a man who had raped, depending on his history and what he said about it.

    But that should always be a woman’s decision.

    Posted by womensspace | May 13, 2008, 4:48 pm
  19. Not to mention, do you really think, IX2U, that a woman wants to bring a one-time rapist (as though a man who rapes ever stops at once, but for the sake of this comment) into her circle of friends? Family? Around her children?

    That’s the whole point here. When you take up with someone, you take up with ALL of the people she is connected with in a certain way. She has a right to decide whether she’s going to introduce a rapist into her intimate circle.

    Posted by womensspace | May 13, 2008, 4:50 pm
  20. This law is so vague, so abusable and so interpretable that I don’t see how anyone could support it. Even the term “sexual autonomy misappropriation” is so convoluted that it brings all sort of question marks.
    “The legal norm is “caveat emptor” in the marketplace of sexual relationships, which fails to deter blameworthy interpersonal deception.” I don’t see why this is so catastrophic. The idea that people must be shielded by restrictive laws from every instance that could cause any suffering is slowly taking us to some lawyer dystopia. Protection is good but just like armor too much of it and you can’t move anymore. This would not put a measure of protection but offer a new way for imaginative opportunists to drag people in lawsuits for money.

    Posted by balom | May 13, 2008, 4:52 pm
  21. balom, I think if you read the article, you’ll understand what is meant by “sexual autonomy misappropriation.” Tell you what, it might bring all sorts of question marks for male attorneys, for those of us who have experienced the sharp end of that particular stick, we have no problem understanding what Sacks is talking about.

    I think you should consider the comments already posted to this thread to see how certain deceptions can be catastrophic. As to dragging people into lawsuits, reality and history tell us women don’t do that even when they’ve been raped. It’s too painful. But laws like this might result in fewer rapes which women must bear in isolation, telling no one, receiving no justice.

    Posted by womensspace | May 13, 2008, 4:56 pm
  22. If you honestly can’t see the difference between withholding what you think of as material information and pretending to be a completely different person, then this conversation is not worth engaging in.

    Posted by 12XU | May 13, 2008, 4:58 pm
  23. Re not telling a woman about having been a rapist in the past.

    Do you realize women get their kids taken from them for crap like this? People say, “Well, what kind of woman would have a relationship with a rapist? And take a rapist around their kids?”

    Not to mention, in your example, the man did time for rape. This is public information. Most of the adult women I know do some sort of investigation of potential boyfriends to find out if the guy has a criminal background, etc. But you’re suggesting that even though a guy spent time in jail, has a criminal record that is a matter of public record, has a bunch of people in his life who know he raped a woman and went to jail, he should still withhold this information from a prospective sex partner. So you’re getting women into bed and all of your friends and family know you’re a rapist, and I guess they’re not saying anything either, so there’s a collusion kind of a deal going on and the woman is meanwhile descending into, likely, a horrible situation that could change her life forever.

    This is what I mean. This article/proposal so clearly illuminates what the problem is that stands in deep need of a solution!

    Posted by womensspace | May 13, 2008, 5:02 pm
  24. I2XU, pretending not to be a rapist IS pretending to be a completely different person. A man who is a rapist is not a nonrapist. He can’t undo the fact of his having raped a woman.

    If what I have said about that is incomprehensible to you, then I’d have to agree, we’re at an impasse. But an illuminating one, so it’s all good.

    Posted by womensspace | May 13, 2008, 5:04 pm
  25. Re the example of the prolife guy who finds out after the fact that a woman had an abortion.

    Most of the time, prolife guys are going to be religious fundamentalists/evangelicals/devout Roman Catholics. And for that reason they are unlikely to seek redress from a woman who has sex with them and then as it turns out, she had an abortion in the past. Why? Because then they would have to admit to having fornicated/committed adultery, which is as much a sin as having had an abortion. Men with these tender consciences like that aren’t normally trying to get all sorts of women into bed, but if they are, they aren’t going to admit it to their peer groups let alone file a lawsuit against a woman (which also isn’t something that flies in these groups.) In prolife groups, there is, in fact, a huge amount of attention paid to the histories of prospective partners. It’s not something that isn’t considered, it is very centrally considered. But again, if it’s not, the guy has a lot bigger problem so far as staying in the good graces of his church/peers than having had sex with someone who had an abortion once. A comparison would be an evangelical who was lied to by a gay male partner. He’s sure not going to be bringing any lawsuits about that!

    Posted by womensspace | May 13, 2008, 5:13 pm
  26. This gets back to the reasonable person idea and the prevailing social norms idea as well.

    If we are talking about one-night stands, pick-ups, that kind of thing, that’s one thing. Then what is most important is knowing whether someone has an STD or engages in things that could be dangerous.

    But with a very few exceptions, most women don’t engage in one-night stands, pick-ups, etc., for the most part, or they do so only for brief periods when they are young, or are being self-destructive for some reason, not necessarily because they don’t want to have sexual encounters, but because it isn’t safe for women to in a way it is much safer for men to, which is undoubtedly one reason men are after this kind of encounter. Leaving aside HIV in the gay community, there just isn’t much risk for men in sexual encounters with women. So, of course, it’s in men’s best interests — clearly — to support the “caveat emptor” perspective of the laws as they stand. There’s nothing much for them to “beware” of if we’re talking a one night stand with a woman. Even so far as STDs, transmission from men to women is far more likely and common than transmission from women to men, and the STDs women can transmit more easily to men are generally not serious in men (i.e., HPV; even STDs like gonorrhea are easily treated).

    It’s not so for women. One night stands *with men* (it isn’t the same for lesbians) are much more risky in every conceivable way, and disclosure, therefore, is much more important for women.

    I think the kinds of disclosure that are important change if we are talking about an ongoing relationship vs. a one night stand. But in either case, the risks to women are substantially more where there isn’t disclosure than they are to men.

    Posted by womensspace | May 13, 2008, 5:36 pm
  27. “Sacks would place the onus on “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.”

    I do hope you allow the full post which I submitted,

    don’t get me wrong, there is a LOT that I concur with, and Strongly,

    especially about disclosing if a man has raped–but also, if a person has abused a Child–male or female, doesn’t matter…

    and some men would feel Just as strongly about whether a woman had an abortion or not, just to be fair…

    but, the placing onus on all persons,

    THEN THAT NEEDS TO BE IN WRITING…

    by Both partners, before sexual consent. My issue with this Tort, is that, we are going to have juries [people mind you, THAT HAVE ALL LIED TO A SIGNIFICANT OTHER AT ONE TIME OR ANOTHER]

    going by Hear-Say,

    Believe me, I would have Numerous Justifications to sue men in my life…numerous, I know what it is, to be deceived, RAPED BY A MAN AND ABUSED SEXUALLY AS A CHILD…

    I know, I also know what its like to be Exploited, remember I was on the streets at the age of 16! And I wasn’t just surviving by working at a low wage job, due to labor laws and where I lived,

    I KNOW what it is, to have those in Power, tell me if I put out, because I was vulnerable and easy to exploit [including one judge and one lawyer, during my first divorce because I DIDN”T have the funds, to fight my ex],

    I KNOW–

    I KNOW what it is to live with a man who I trust and have the Shit beat out of me, and Raped by him, and having no remedy in the courts, or even be taken seriously,

    I KNOW what it is, to be lied to, deceived, have my boundaries violated TIME AND TIME AGAIN,

    OK, SO, DON’T VIOLATE ME, PLEASE, BY TAKING ONE THING OUT OF CONTEXT…

    I also KNOW, what it is, to NOT HAVE A HEALTHY SENSE OF BOUNDARIES BECAUSE OF

    CHILD ABUSE
    RAPE
    MALE ABUSE AND SYSTEMATIC ABUSE TIME AND TIME AND TIME AGAIN…

    But I also KNOW,

    that I not only SURVIVED BUT I REDEFINED MYSELF,

    BY MY VALUES, STANDARDS AND BY THROWING OFF THE YOKE OF BONDAGE AND LIES,

    TOLD TO ME, BY MY OPPRESSORS,

    I DEVELOPED A CONSCIOUSNESS,

    NOT JUST CLASS, BUT OF GENDER,

    and I learned, how to Set Boundaries, and be Vocal about them,

    I learned, what being EMPOWERED IS,

    not by playing into the Affirmation Needs to MEN,

    or to Women for that fact,

    or to Society.

    We want protectionism, Fine–

    DO IT BY MAKING MANDATORY SELF DEFENSE MARTIAL CLASSES TO EVERY SINGLE GIRL LIKE THEY DO IN CHINA

    DO IT BY TEACHING CHILDREN, TO DEFINE THEMSELVES, LEARNING RESPECT FOR THEMSELVES AND FOR EACH OTHER AND FAMILY AND SOCIETY

    DO IT BY TEACHING GIRLS THAT THEY CAN BE SEXUAL BEINGS AS WELL AS INTELLIGENT BEINGS…AND BE WORTHY, AS THEY ARE

    DO IT BY GETTING RID OF CLASSISM AND RACISM AND ALL THE OTHER ‘ISMS’ — ENDING MISOGYNY AND MISANDRY

    but Do it, by EMPOWERING

    INDIVIDUALS, WOMEN AS INDIVIDUALS,

    NOT DRONES OF THE STATE MACHINE. OR GROUP THINK DOGMA,

    we don’t raise a healthy society with the it takes a village WITH A DYSFUNCTIONAL VILLAGE,

    do it BY REMOVING THE STATE INTERFERENCE IN MATTERS OF SELF DEFENSE–

    FOR WOMEN,

    not by putting women in some sacred box that needs protection,

    but by Empowering Women, to NOT put up with Porn [the man’s equivalent of needing a sexual Robert Rules of Order of Power Distortion to have sex because without it, without that Power, he is lost in how to even Have true intimate and good sexual relations based on RESPECT AND EQUAL EXCHANGE , Sexual Exploitation, etc.,

    and by teaching Girls, Women to not be Afraid to be VOCAL AND SET BOUNDARIES,

    BEFORE SEX, BEFORE EVEN GETTING NEAR THAT POINT…REGARDLESS OF PARTNER, MALE OR FEMALE…

    I agree with you, the one good thing coming out of this Tort Bill is Discussion…

    but we need to also, LISTEN, because sexual relations works both ways, for parties involved…

    I KNOW, what it is to be a VICTIM,

    and I KNOW, what it is, to make a decision, to NOT BE A VICTIM EVER AGAIN…

    I might not have the Control always, to prevent things,

    But I DO HAVE THE CONTROL, TO EITHER LET IT BREAK MY SPIRIT,

    OR FIGHT AND NOT LET, THE HARM DEFINE WHO I AM, AND KEEP MY SPIRIT INTACT…

    that is MY choice, none of the Abusers in my past, Won,

    not ONE OF THEM…

    the ONLY injustice, is when the STATE says, you Can’t retaliate, or be angry, or defend, but must Rely on the STATE to be our defense,

    and then, the STATE gets the REPARATIONS,

    NOT THE VICTIMS…

    Deal with THAT issue, we would come a long way in ending RAPE, [put it This way, I can assure you, Mr. Bobbit will never again, unless he’s just Stupid, rape another partner, I have to hand it to Ms. Bobbitt, who is, yes, one of my heros and I say, Why not MORE LIKE HER.

    Tort Law violations would only serve the purpose of the State and System, in getting a huge percentage of monies, exposing our private lives in front of everyone [therefore revictimizing us again],

    and causing us a feeling of powerlessness, oh Sure, we might get some temporary satisfaction of getting ‘back’, or getting ‘even’,

    and I can assure you, thats All this Tort law would be used for, by Men more than women,

    but even with that, it would do NOTHING, to EMPOWER US, TO SET BOUNDARIES OR TO,

    PREVENT HARM…

    people intent on doing harm, will do harm, Regardless of the laws.

    While yes, I concur that we need some remedies in the State because we don’t have other remedies available to us…

    as one who KNOWS, I know my Empowerment comes from telling it upfront, and not putting up with any Shit from a man, or woman,

    took me years to learn, and NOT being afraid to define who I am and Tell who I am, no matter HOW many scream moonbat,

    and as LONG as we have a system, that is Based on Economic and Class oppression/stratifications, we will Never end, women’s oppression,

    or vice versa.

    EVER,

    this Tort Law I seriously don’t think, helps in Empowering women or helping them to rise at a level of CONSCIOUSNESS,

    because its still, DEPENDENCY ON THE STATE…

    to “PROTECT US”

    AND IT WILL DO NOTHING TO CHANGE THE ATTITUDES OF MEN, LIKE FROMM SAYS, THEY’LL JUST AVOID PUNISHMENT OUT OF FEAR,

    NOT INNER CONVICTIONS,

    MEN CHANGE, ATTITUDES AND BELIEFS, WHEN WOMEN, STOP ALLOWING MEN, OUT OF NEED FOR APPROVAL, CONDITIONING OR NOT TO VICTIMIZE THEM IN INTIMATE SETTINGS BY NOT BEING UPFRONT ABOUT THEIR BOUNDARIES,

    OR WHEN WOMEN FIGHT BACK AND ARE NOT RETALIATED AGAINST BECAUSE THEY ASSERTED THEIR INDIVIDUAL RIGHTS TO LIBERTY,

    thats where the Revolution Needs to be,

    AND IF,

    a Tort Law, a suit is to be filed, then I strongly suggest, that the Boundaries be put in WRITING, FIRST,

    ON EVERY CONDITION,

    before giving Consent. If Suits under Tort are not willing to do that BEFORE DAMAGES ARE AWARDED,,

    then this law is indeed, unjust.

    Spoken from one who KNOWS what it is, to have Boundaries Violated,

    I would not sue, a man or woman, if I gave them consent to sex, and then found later, that they did or were such and such and such…

    I would though, be very Vocal about my Values and Principles and based on That, on my Self-Worth and Self-Esteem,

    Choose CAREFULLY who my partners would be.

    And, AND If I found, that individual LIED to me, knowing they violated my boundaries,

    I WOULD DEAL WITH THAT PERSON MYSELF, [AND I HAVE]

    NOT RUN TO THE GOVERNMENT TO DO IT FOR ME,

    OR, IF I DID HAVE IT [THE BOUNDARIES] IN WRITING,

    THEN, I MIGHT GO AFTER REMEDY…[but of course, here’s the clincher, unless one had MONEY to pay for the attorneys, they are’t apt to have much resource there now ARE they?],

    Posted by Tasha | May 13, 2008, 5:51 pm
  28. Tasha, I’ve approved your most recent comments, but again, I’d ask that you wait a bit now before commenting again and when you comment, I’d ask that you focus more narrowly on specific issues and that you would respond specifically and more narrowly to what others have posted, so that we can have more of a dialogue. When comments are so long and cover so much ground, and when you’re responding so generally much of the time, people tend not to respond (and not to read– it’s just too much).

    If I don’t approve a comment here — yours or anyone’s — I will have a good reason for it. I want to approve the good faith comments of women as much and as often as I can, but at times I don’t. Many, many long comments which cover a lot of ground tend to close down discussion instead of encouraging it and can be frustrating enough that women just kind of give up. I hope you are not offended by this because that’s not my intent. I value much of what you have to say. This is my blog to moderate, though, and often, moderating is a real pain. I try to consider what is most likely to be of benefit to all of my readers/commenters/lurkers as well as least of a headache to me in deciding what to approve.

    Posted by womensspace | May 13, 2008, 6:48 pm
  29. Tasha: not by putting women in some sacred box that needs protection,

    See, this isn’t what Sacks’s article is about though, as I’ve said before? For one thing, it’s not gender specific. I’ve also explained why I don’t agree that men having sex with women who had had abortions would be much of an issue. When you simply reiterate your previous points, it just gets frustrating to attempt to have a conversation. I don’t know whether you’ve actually read other comments carefully and are disagreeing, whether you didn’t read, what.

    As a practical matter, there isn’t a way to put things into writing first — that would put the onus on the lied-to person to have had to guess all the possible things someone else could lie to her about.

    It’s true that where all there is is the testimony of the parties, no witnesses, nothing in writing, it’s risky to file charges/bring a lawsuit, especially for women because of how women are treated in the courts. On the other hand, this would inhibit the filing of frivolous suits or bringing frivolous charges.

    The jury system in the U.S. isn’t perfect, but it functions pretty well, much of the time. Judges are far from perfect, but often enough, they make good decisions.

    I disagree that laws/proposals like this won’t change men. There are plenty of decent men out there who simply haven’t thought of these things. This is especially true where men are not liars, they don’t fraudulently induce women in order to get sex, they don’t violate the autonomy of women. There are plenty of men like that out there, and some of them are attorneys. It wouldn’t occur to them, quite often, the kinds of things many men do to get sex that cause such harm to women, and what the harm that is caused looks like, because they don’t do that stuff. This kind of law brings all of this into the light in a way that educates men, and some of those men are going to change because they have been educated.

    Posted by womensspace | May 13, 2008, 7:01 pm
  30. Tasha: this Tort Law I seriously don’t think, helps in Empowering women or helping them to rise at a level of CONSCIOUSNESS,

    because its still, DEPENDENCY ON THE STATE…

    I think it’s just a new and potentially useful tool to use in both raising the level of public consciousness so far as issues around rape and consent and in bringing perps to justice.

    As women, we have always known that the state doesn’t protect us, not really — other than as chattel, the property of men — and that the law does not protect us, and ditto. This is why by far most rapes never are reported. Women know nothing is going to come of their reports, neither of sexual assault, incest, battery. We don’t depend on the state, as women, by far most of us.

    But as I said in my first post about this, or as I quoted CAM, women have made at least one law: sexual harassment law. And (1) women (and some men) have been helped by it, received justice by way of it as they never would have before the law; (2) it has raised the level of public discourse around sexual assault (virtually all larger companies/employers have regular sexual harassment education/training meetings now– never did they before sexual harassment law); (3) it has raised the bar so far as what is tolerated in the workplace.

    These are good results. Not perfect. Men haven’t stopped sexually harassing women (and sometimes men). But it’s better now than it was before the law. It’s a tool we didn’t have before we had the law. It’s not something to put our faith or trust in entirely, but it’s one tool.

    I feel the same way about what Sacks has written. The one issue that nags me is, I would prefer a gender approach, a violence-against-women approach, over this approach, I *think*, because this approach seems too much as though it goes to sex being about property/commodity/exchange/something to steal as opposed to rape/assault/lack of consent as violence against women (which it is) and actionable *as* violence against women, even if it’s a matter of “fraud in the inducement.” But maybe I’m wrong, because Sacks is theorizing violation of sexual autonomy/fraud in the inducement as a kind of battery.

    Posted by womensspace | May 13, 2008, 7:19 pm
  31. Done here. Thanks for actually discussing merits and exactly how you see it being applied. We have a fundamental and apparent disagreement. Thus, we must agree to disagree. Pretending to be someone who you are not is more than lying; my opinion, for what it’s worth. I’m glad the personal attacks no longer permeated this discussion and I am genuinely grateful to have had this discussion.

    Posted by 12XU | May 13, 2008, 7:31 pm
  32. I’m pretty much on the same page as Tasha here. The red flags are flying and the sirens are going full blast with regard to sex torts and government legislation. In case anyone forgot, we live under patriarchy. The state, the law, and law enforcement exists to protect the powerful, not the disenfranchised. If history is any barometer, these torts will not be used to help women or give women justice. Just the opposite will occur. These torts will be used against women and further disenfranchise and oppress them, thereby stripping them of even more defenses.

    Yes, I’ve been there too, Tasha, and that’s precisely why I will vehemently object to these torts. I’ve seen the law in action all right. How it’s twisted and manipulated every which way to serve men and further disenfranchise and oppress women.

    Posted by luckynkl | May 13, 2008, 8:57 pm
  33. luckynkl,

    thanks,

    not only that, a bit of humor here,

    but What if, like I could sue some of the men in my prior…

    What damages would I get from a few of them?

    What! A six pack of beer and a clunker car Maybe?

    ROFLMAO,

    Sorry but I just COULDN’T RESIST,

    it was just too damn funny, LOL. Seriously though, its hard enough getting Child Support–impossible in fact, for many low income women, and even if some do get their 50.00 a month, Big deal, with low wages and 50.00, hell that doesn’t even cover daycare–

    but Damages, unless its a really WEALTHY man, if you’re one of the disenfranchised or low income–which majority of partners will be in same boat,

    not apt to get much in punitive damages.

    wouldn’t be worth the expense in dragging all sorts of personal info in a court with a jury with judging on ‘social norms, including class prejudice, especially low income women, why after all,

    we aren’t Supposed to be having sex or even dating…the social mores/morals, etc., norms, are on a far different standard,

    for the underclass and lower middle class, etc. Why by golly, we apt be to thrown in jail, they’d turn our having sex into being a prostitute, or some twisted shit like that…or take our kids away, because we are deviating from social norms of ‘good mothers’, or ‘good women’ [they do this ALREADY, believe it or not…just be a poor woman and get caught smoking a joint, and see what the court system does to you…

    cough cough….

    LOL

    Posted by Tasha | May 13, 2008, 10:20 pm
  34. Remember that in some places, i.e., Massachusetts, the proposals are calling for criminal prosecution, i.e., if someone violates someone’s sexual autonomy or “fraudulently induces” sex, and so rapes the person, the state brings criminal charges against the person. The person herself iow doesn’t have to hire a lawyer and file a civil suit, etc. The guy gets arraigned and criminally tried.

    I posted info about the Massachusetts proposal here.

    I realized after I wrote my comment earlier that Sacks is theorizing these types of rapes as tortious battery, not criminal battery, so I still have the concern about these rapes being punishable more as theft than as violence against women if we use Sacks’s theory.

    Posted by womensspace | May 13, 2008, 11:37 pm
  35. EDITED,

    Really DHAPMNG,

    is that While you are

    DRY

    HUMPING

    A NAKED WOMAN?

    learn your urban slang folks,

    DHAPMNG MEANS– dry humping a pretty much naked girl

    that you agree?

    Just curious,

    btw, since a ‘whore’ is not ‘real people’, according to a joke by some,

    does that mean then, that First Amendment Rights need not apply, after all, for Non-Persons?

    And, since the majority of us women, are called ‘whores’ by most men, at one time or another,

    do we too fall in that category as well, as NON-PEOPLE?

    Please, oh please do enlighten us,

    DHAPMNG,

    I strongly object to this Tort–not on the same grounds as you, however,

    Tell me DHAPMNG,

    being that I’m more of a follower of the Class Revolution [think, CHE with PMS baby]

    would you be so willing to be DHAPMNG if lets say, she has a Glock in her hand?

    After all, fair is fair…its just ‘play and joking after all’,😉

    meanwhile, about the whole date rape drug, well, being that I’ve been somewhat influenced by my Male Comrades,

    how about, while they or he, is preparing that cocktail, I prepare my own,

    which, would work on the man intent on rape, FIRST,

    then I, maybe with some help from my companeras’,

    decide to tie the rapist down, and give it right back…

    and then film it, then we have some big F fest and laugh while watching,

    hmmm, now THATS EQUALITY HUH,

    better hope, the radical feminists, have more persuasion,

    because trust me, some of us Other radicals,

    won’t be so kind…

    ah, don’t sweat it, just Practicing my Free SPEECH RIGHTS,

    you can take a joke can’t you?😉

    Posted by Tasha | May 13, 2008, 11:49 pm
  36. Re DHA… I deleted it. Thanks, Tasha.

    Posted by womensspace | May 14, 2008, 12:03 am
  37. 🙂 you are welcome,

    btw, it should be First Amendment Rights, lol,

    sorry, but that date rape drug threat–you know me, I don’t back down from a fight, I’d love for them to come to my hood,

    and threaten that shit. We have our own way of taking care of that sort of thing…

    Posted by Tasha | May 14, 2008, 12:12 am
  38. @Heart – you’ve completely missed the type of suit a fundamental pro-life person would bring. It wouldn’t be against a woman that had he had a brief encounter with, it could easily be against his wife. This would likely come out if/when they try to have children as this is relevant for medical purposes. At that point, there is a decent change he would consider divorce, but now this law would allow him an even bigger way to get revenge – press rape charges.

    Second, you also miss another big area where this suit would be brought. There is no reason that the suit would be limited to strong pro-life men against a woman that has had an abortion. The law is based on a reasonable man standard, so in fact it is irrelevant if he is pro-life, just whether the fact of an abortion would be material to a reasonable man. Thus even if it may not have truly been material to him, nothing stops him from pressing charges regardless (I also would suspect that this fact is material to many non fundamental men, as abortion often leaves emotional scars that many men would rather not deal with).

    This same analysis can be written for any private fact that men might want to know about a woman – should she really have to disclose the fact that she has been raped or molested? This fact would be material to most men in deciding to enter a sexual long-term relationship, and under this law she would be a rapist if she kept this a secret.

    Posted by Jim | May 14, 2008, 3:11 am
  39. Jim, I think you’re wrong about fundamentalist/evangelical/RC pro-lifers. I know these folks very well. To be married in their churches, they have to go through premarital counseling where this kind of issue is always raised, i.e., have you had an abortion, etc., have you repented and been forgiven/had counseling. The having of abortions is forbidden in all of these groups and everybody in the groups knows that going into marriage. In general, people in these groups are not only careful who they marry but often they have to jump through all sorts hoops because of their groups’ various rules about marriage, etc. It’s pretty unlikely that a couple would marry and the woman wouldn’t disclose this.

    Having had an abortion is not germane to having kids in the future, medically speaking. Abortions don’t keep women from conceiving/bearing children or increase the likelihood of infertility or anything like that. Doctors don’t have to know about past abortions and women don’t have to disclose them to doctors. There is no way to know a woman has had an abortion unless she tells.

    It’s true that people could lie and say that they wouldn’t have had sex with someone had they known XYZ about the person. But, judges and juries would have to be convinced. They’ll have to convince an attorney to take their case, (meaning convincing the attorney he can collect any judgment he might win, finding some sort of deep pocket somewhere, unlikely given that this is hardly something you will buy insurance for! Huh, now that I’m thinking about it, I wonder if this IS something liability insurance would cover?! Maybe as a kind of negligence?). And they’ll have to pay a retainer, etc. If they are telling lies, I don’t think they’re going to get very far very often.

    If it’s criminal charges we’re talking about, a prosecutor is going to have to have enough evidence to bring charges. How often is that going to happen? Prosecutors often have tons of evidence against someone, and just as often, they don’t file suit for many reasons. I can’t envision a scenario in which a man is going to complain about finding out about his wife’s abortion back in 1973 and the prosecutor saying, “Yeah, I’ll get right on it.” I think there will have to be some sort of harm done that is measurable in some way and that the prosecutor is going to have to be convinced that a reasonable person would be sympathetic to the loss, not just men, women too. Nobody gets to choose the sex of all of the jury members or, for that matter, of the judge. The article(s) I read spoke of emotional trauma of various kinds, which would, I’d imagine, have to be documented via trips to the hospital, diagnoses of depression, job loss, etc.

    What would the harm be to a man, in your mind, if a woman didn’t disclose having been raped or molested? Where is the trauma he would have to deal with should he find this out after the fact? Someone who has raped, might rape again. Someone with a disease might infect someone. Someone with a terminal illness won’t be around to spend the life together, have the kids, etc., as is the dream and expectation when people are serious about one another and planning a life together. Someone who uses pornography is not going to be present half the time during sex. Someone into sex with animals can’t be trusted around animals. And so on. I can sort of see the possible trauma so far as abortion; it’s something a woman might do again, to the man’s child. But what is the potential harm or trauma that could result from not having known a woman was incested or molested?

    Posted by womensspace | May 14, 2008, 3:53 am
  40. What is the harm in not knowing about molestation/rape?

    Simple – it often leads (justifiably of course) to repressed issues with men/sex. It can cause a great deal of issues when the relationship begins to become intimate and a woman who has had a bad history with men will likely have a difficult time fully trusting her new partner. I am no expert on this, but I have experienced this myself. By the time I learned of her past I cared too much and worked with her to try to help her get over her intimacy/sex issues. If I had the choice now I would prefer not to get involved in such a situation again (and most other men I’ve spoken to agree). Perhaps this makes me heartless, but I’d rather start the relationship with a relatively clean slate than have to work on cleaning up the emotional issues left by the past harm she experienced.

    I’ll make one second point as to whether the jury/judge will believe someone. If you truly believe this, then isn’t the law pointless? If the prosecutor will never bring charges and the jury/judge is unlikely to believe that the accuser would not have had sex if they knew, then the law will accomplish nothing. There would be almost no way to tell if the accuser truly would not have had sex but for the deception other than what they claim. Thus this law would allow better actors to bring claims while dismissing the real claims of people that don’t seem as believable.

    Posted by Jim | May 14, 2008, 4:32 am
  41. Just to note, doesn’t hurt to be informed🙂🙂🙂

    in case any are interested, while I don’t have a lot of faith in the legal system [and for obvious reasons],

    I do want to add, that there are those, that have fought, against the Elitism in the legal systems, the BIG LAWS so to speak, and how they operate to MAINTAIN THAT STATUS QUO,

    not just the sexism but racism too…and in that, while I don’t concur with several tenants of the Tort Law,

    I do want to add, I applaud Sacks for working on behalf of women, on behalf of Civil Rights, and Democracy, FOR ALL AMERICANS,

    and she has my respect.

    Also, while there are problems I think with this Tort–it IS something! Something that, is progress for women,

    its TIME we start holding the Culture of Rape accountable, its TIME we start holding the Culture of PORN which THRIVES AND FEEDS OFF HUMAN RIGHT ABUSES, RACISM [LOTS AND LOTS OF RACISM AND HATE CRIME-RAPES], and its TIME that those who would create or want to create an Elitist FASCIST society,

    [do some reading on how they think middle class Americans should not pro-create–if THAT doesn’ t wake people up, nothing will…follow the money trail AND the ‘elitist’ trail, its absolutely Mind Boggling that in a so called Republic that is Democratic, we are truly, nothing but a deceptive oligarchy],

    Anyway,

    for MORE research, and all here should read,

    do some reading on the National Lawyers Guild [a bit more radical but they have good points and info]

    and

    here: http://legalblogwatch.typepad.com/legal_blog_watch/2008/03/georgetown-law.html

    Posted by Tasha | May 14, 2008, 5:45 am
  42. Even though I support elements of this law I feel a little concerned when I consider my last relationship. My partner was abusive and tyrannical and I was too afraid to leave the relationship. To ‘escape’ I engaged in a emotional and sexual relationship with another person, without my partners knowledge. For him to know would have been extremely dangerous both for me and the other and involved a lot of violence. Hence my inability to tell him and my inability to leave. If he had found out about this couldn’t he use this law against me?

    Posted by ate | May 14, 2008, 12:52 pm
  43. Jim, I don’t think prosecutors will “never” bring charges. And I didn’t say that judges/juries would be “unlikely” to believe (or disbelieve) anyone. I was arguing with the idea that people could bring all sorts of frivolous lawsuits or file all sorts of frivolous charges using laws like the one Sacks proposes, and prevail. I don’t think they could. I think in order for judges and juries to be convinced, the people and what they had to say would have to be credible, believable to them, the facts would have to line up, the violations would have to be very clear.

    Using a fairly clear example, if someone is talked into sex with a person that they find out, after the fact, is HIV positive, they are going to be in a state of shock. They are going to confront the perp, go to the police, possibly, they are going to go to doctors, they might call crisis lines, get emergency counseling, and they will consult attorneys. All of these different people they go to will document what they have said, at least somehow, to some degree. In this situation, I think attorneys, social workers, counselors, crisis line people, doctors, police judges, juries, are likely to find what they have to say highly sympathetic and what the perp has to say in his own defense not very.

    In situations which are less egregious or clear-cut, maybe is a better word, there will still be outrage, horror, confrontation, doctors, counseling, crisis line calls, police reports, all of the responses people have and make to having been forced into sexual situations or acts against their will. And I think attorneys will take and courts would make decisions about these situations based on the evidence that is presented to them, as with other kinds of lawsuits.

    You (and others) seem to be suggesting that based on this law, people would nonchalantly stroll in to prosecutors’/attorneys’/police offices and make a random statement about something a partner didn’t tell them about once when they had sex, vindictively, or something like that. Somebody might try that, I suppose, but who would take them seriously?

    ate, my thinking would be that how laws like this would be applied would have to take issues of violence and abuse in ongoing relationships into consideration. I don’t think an abuser could successfully use laws like the one Sacks proposes against his victim, first because he’s going to have to disclose his own (criminal) abuse (because she’s going to explain that it would have been dangerous for her to tell him anything he didn’t want to hear), and also because she could say that he did not disclose to her before they first had sex that he was violent, a batterer, and would hit and otherwise abuse her and if he had disclosed this, she would never have taken up with him in the first place! Which is true and the story of so many of our lives!

    I agree with you, Tasha– even if there are problems, laws like this are SOMETHING for WOMEN!

    Posted by womensspace | May 14, 2008, 3:41 pm
  44. not to start something here, but women, should be aware,

    on this part, “I don’t think an abuser could successfully use laws like the one Sacks proposes against his victim, first because he’s going to have to disclose his own (criminal) abuse (because she’s going to explain that it would have been dangerous for her to tell him anything he didn’t want to hear), and also because she could say that he did not disclose to her before they first had sex that he was violent, a batterer, and would hit and otherwise abuse her and if he had disclosed this, she would never have taken up with him in the first place! Which is true and the story of so many of our lives!”

    not to be argumentative, but YES they Do use this against women All the time, in court cases, [esp if children involved] and I can’t tell you, how many low income women [or not always low income] have had their lives thrown up and the Fathers who are abusive, or men,

    get custody of the children, so yes, this Tort law, probably Could and yes, Would be used against women in these types of cases–or the precedence from the law,

    if someone wanted to push it, say, like in a marriage that divorce is filed due to abuse in one year,

    it doesn’t matter if the man even has a record…of abuse, you’d be Amazed, how they turn the sexual history or moral character, better term of the word, against women here, and the gender bias is HUGE in our court systems on matters of divorce/etc.,

    I know women who’ve lost kids to child molesters because they are on welfare, I know women who’ve lost kids to drunk men because they have had a boyfriend during separation,

    it happens all the time and if they’ll take women using daycare against them or take women having sex and saying she’s exposing her kids to such and such[the man gets free license however] or that she deviates from the ‘good woman’ norm,

    oh Hell yea they’ll hang her with it, IF the man chooses to use Any thing, to get the kids or lesson his child support, men with the Power and or the Money, or even long term employment with one company, unless the woman has good resources and money,

    she’s somewhat screwed there, sorry but thats the truth, 70% of cases where men file for custody, win, the men, 70%,

    it doesn’t seem like in the open that the courts are that biased because most men, working class especially or lower income middle class, low middle class, that is, don’t fight for custody, etc.,

    but the ones that do, or the ones that are just assholes and want revenge, will pull any thing they can, to penalize women,

    Especially if the man is abusive, the court system is one of the best leverages they have against women to Maintain that control…not in the criminal aspect, no,

    but Civil, oh yes…

    and this is one of the big reasons that I don’t support this Tort, because it will be in those types of cases where they will pull up that defense so to speak, if not in total, in part, and they’ll use it against women,

    because MEN have something to lose in civil courts, $$$, reputation, [that can affect job promotions, opportunities, etc] and the more that is a risk, the more they’ll pull out anything they have, [or their lawyers will],

    and due to the disclosing, it is, or has strong potential of opening up all sorts of privacy issues/questions of morality being used,

    in regards to adultery especially–or in cases where, a woman is pregnant and the father isn’t the husband,

    they already do this NOW, this Tort law could give them more ammo, or using the example of, [the spirit of the law] so to speak…

    this law Can work, sure, for women, it can also work against them…but I would think, it would work more against those women, who do not have the power or resources to fight the gender bias already present and that laws [like this one] can be used further [especially because men protect other men…that boys club mentality], to penalize women,

    its a catch 22 in other words.

    thats the problem when there is issues of ‘morality’ or ‘character’ and law being used, to bring up charges…civil or criminal [not speaking about violent crime],

    the INTENT of the law, I totally agree with, I just feel it needs to be reworded, on many parts, but thats with many good laws isn’t it, its all a matter of interpretation,

    and who is interpreting the laws.

    Maybe what would be a good solution, is pre-marital counseling or even, a course in education on pre-consent disclosure, educating women and men,

    about values and the importance of ethics in relationships…education, because knowledge is power,

    the thing too, is just how many women, don’t mind porn, or if a man is like a womanizer, [because they are gullible enough to think that ‘they’ are special and that while their ‘men’ might get off on watching women being raped or has been a womanizer in past, that somehow he won’t be that way with her…we’ve seen that, numerous times, and how many of those women ten years down the road, after a couple of kids, see differently, because jerks are jerks regardless, and then, sadly some of these women are stuck, sometimes the higher income women are even more stuck because HE has the power, and the finances to go after her and keep her in control, even keep her from leaving],

    but my point is, I think where we will see the abuse of this law, is where there is children concerned, meaning custody issues [look at the problems in paternity suits/child support/child custody even in common law marriages],

    and with many laws, I think thats where it gets tricky–is what are the long term implications going to be?

    Will it make men more responsible to disclose or will it make some men more responsible [who have more to lose] but too, make it to where women, are finding themselves more apt to be put in the box so to speak and judged on Their behavior, putting them back,

    into that whole male standard of ‘purity’ type of mentality/regulation, so forth,

    I keep going back and forth with this law, because yes, just the crap that men do, to lie and oh, I mean if women knew, what men were, would they even consent to talk to them much less sleep with them,

    but on the other hand too, how do you curb or deal with something [been reading JSMill on this, just yesterday] when you have so many women, that do give consent, no matter what they know?

    Men’s behavior will always be judged on a different level than womens, this we know…

    question is, will this law even the scale, or potentially reverse it, push us even more backwards so to speak?

    I haven’t seen how this law has been used in the four states its been passed in, but maybe we haven’t seen, cases come up yet…maybe its too early to tell???

    But all it takes, is one court decision, one case, to set precedence…

    and then lawyers tend to run with it.

    Could work, either way, but to women with little resources, even without this law, they really need to be informed of how yes, the system can work so against you, laws can be twisted like you can’t imagine,

    and the less resources/money you have, the worse it is. Because here’s the truth of the matter,

    its not so much, the law being for or against you, in the Court Room, its the Game of law, that begins, and its the ATTORNEY you have,

    and how they ARGUE the law, or DEBATE, and money, buys the better attorneys, [not always, but those cases are rare], but the one with the better attorney, esp the big law firms, etc.,

    the better chance they have at winning, doesn’t matter if they are the most abusive raping child molesting men out there, [or women–it can work in that way too, and I know I’ll get landblasted on this, but I’ve seen women, who just put the screws to men too, especially in child visitation issues/where men pay child support but never get to see the kids–alienation cases, I’ve seen it, personally and it seems its the decent men, that get the screws put to them, go figure,but nine out of ten, its based on who has the money–family money, etc],

    and it is, so centered around economics in what one can afford, women or men…not just civil but criminal,

    like, legal aid, Forget it, if you want to see where the system is really stacked against those without resources, look at those cases…

    why its Imperative, that before you marry, before you get into relationships, before so many things, that you research, at least some, and know, what the laws are and if you do find you are in a suit, research your attorney’s record, judge, etc.,

    never forget, they make income off of you, many will tell you what you want to hear, not all lawyers care about you, its the winning they care about, or the money earned,

    emphasis on not all lawyers, there are some that Do care, some really good people in law,

    but I have found, the good people, because they AREN’t unethical, tend to not win as many cases, and where women are concerned,

    it can be so destructive to their lives.

    Why reliance on law alone, on the system, is in a way, a type of suicide…this is what they mean, when the ‘elites’ say the common masses are stupid and less than,

    because so much [and this is true in politics too] the common masses, don’t have the knowledge or maybe don’t want the knowledge, its easier to ‘rely on those above you’ to fight for you,

    but its not always,

    the wisest.

    Tasha

    Posted by Tasha | May 14, 2008, 4:30 pm
  45. “ate, my thinking would be that how laws like this would be applied would have to take issues of violence and abuse in ongoing relationships into consideration. I don’t think an abuser could successfully use laws like the one Sacks proposes against his victim, first because he’s going to have to disclose his own (criminal) abuse (because she’s going to explain that it would have been dangerous for her to tell him anything he didn’t want to hear), and also because she could say that he did not disclose to her before they first had sex that he was violent, a batterer, and would hit and otherwise abuse her and if he had disclosed this, she would never have taken up with him in the first place! Which is true and the story of so many of our lives!”

    This is a perfect illustration of the problem with a law like this. While everything you say should be true, from a legal standpoint it isn’t. You cannot defend against a crime/tort you committed based on the “guilt” of your accuser/victim. It is not a legal defense that you lied to protect yourself – for instance, if a batterred spouse steals $50,000 from her husband so that she can leave him, she is still guilty of theft. In fact, at a trial, evidence of his abuse would be irrelevant, just as it would in the example ate presented.

    Also, again it doesn’t matter that he also committed fraud/rape. Similarly it is not a defense that your victim committed the same crime against you and again, would likely not be allowed in as admissible evidence. There is a general prohibition against presenting evidence showing the bad character of the victim, and in fact.

    The general point I think that most people against this law want to make is that whatever you think of the merits of this type of law and the intentions behind it, it would create a legal minefield and would cause more harm than good. The legal field is full of examples of laws that were passed to do great things, but ended up being a trainwreck due to proponents of the law failing to fully analyze what would happen after it got out of their hands and had to actually be applied to real world situations.

    Posted by Jim | May 14, 2008, 4:56 pm
  46. Mmm, it’s true that you can’t defend yourself against a crime/tort you committed based on the “guilt” of your accuser/victim, but if laws like the one Sacks’ proposes were enacted, you could cross claim or file your own lawsuit in situations of abuse, especially. No woman ever knowingly, willingly, intentionally enters into a relationship with an abuser. She is virtually always “fraudulently induced.” I like this particular potential so far as legislation like this.

    Whether or not a battered woman is guilty of theft for “stealing” $50,000 so she can leave him depends. If they are still married and it’s a community property state, she can take the $50K and it won’t be considered theft. It will just get factored into the final settlement or judgment in a dissolution, if they have one.

    In non community property states or where we’re talking about unmarried people, she might be in trouble for taking $50K to get away from her abuser. But with legislation like this in place she could also file her own claim/charges against the guy for rape/”fraudulent inducement”/violating her sexual autonomy, possibly, for failing to disclose to her when they met that he was a violent abuser. It might be one more tool available to battered women, is my thinking.

    Posted by womensspace | May 14, 2008, 5:47 pm
  47. To you know who you are: If you mess with me, you will pay. Yes, WordPress logs your IPs and guaranteed, I save them.

    Heart

    Posted by womensspace | May 14, 2008, 10:08 pm
  48. I really appreciate you all taking the time to respond to my question as wrapping my head around this is difficult as I don’t know a lot about the intricacies of the law.

    I can see that the sentiment intended under this law and that it’s intention is good and could provide another tool for battered women. I really support these ideas being drafted into law and if it wasn’t for the fact I can see it through the lens of my own personal experience I might not be so doubtful. I think it is trying to deal with a ‘gray zone’ in law but in a way that requires non gray facts etc. Take for the example the way rape is dealt with now. It might be slightly different elsewhere but where I live you have to provide ‘evidence’ that you were raped. Didn’t report to a hospital immediately? Don’t have evidence that sexual activity even occurred? I’m sure you are well aware of the result…

    If I tried to make a counter case against my ex partner with no evidence for the rape/s, no witnesses to the battery and taking into account that none of his friends would testify that he was violent towards me thanks to boys club loyalty… my case isn’t very strong, his (potentially) is. It could then be made even stronger by making claims of how i’m just trying to destroy his good name, that i’m viindictive, etc, etc (it was all said).

    I think this law is well minded but will unfortunately be ineffective in the majority of cases for the same reasons as now. The law is skewed away from protecting victims when you take into account the level of evidence and fact required, reasonable doubt, etc (not that I necessarily believe that this is bad, just why it’s a problem in these particular cases). If you don’t have enough to make the charge, as many, many, many women don’t then it won’t get through. It’s the easiest thing in the world for the attacker/assaulter you were involved with to say ‘I did tell her’ and unless you had evidence to say he didn’t the case would fall flat on its face. Same way as these days he can just say: ‘She said yes’.

    I’m not particularly knowledgeable of the law however so my conclusions, particularly in the last paragraph, could be faulty.

    Posted by Ate | May 15, 2008, 8:40 am
  49. Ate,

    unfortunately yes, its in the requirement of evidence/burden of proof in rape cases,

    this is WHY however, that we need to stop relying on the Guardians of Olympus, overthrow them and crush them under our feet.

    Which might not be too far off, lets not forget, the good ‘ole white brotherhood’,

    is a MINORITY, thanks to their prole-hating eugenics pushing creeping fascism,

    just hearing La Raza La Raza, is enough to put fear into their hearts. Might to a lot to change how our current legal -social system works as those demographics change, LOL🙂

    While I’m not a supporter of nationalism [or nationalist chauvinism] I do have to say, after this entire discussion,

    Brother Wright has some valid points. He most certainly does.

    Posted by Tasha | May 15, 2008, 4:41 pm
  50. The downside of ATE´s argument is that we can not lower the burden proof. Our (The United State´s) justice system was founded on the idea of protecting the innocent, not condeming the guilty.

    Do rapists get off the hook when they are guilty? Yes, I have to believe that is true (I have no actual knowledge). Am I ok with this happening, yes. I know that it is a horrible thing to say, but if it means keeping an innocent person out of jail I can sleep at night.

    Posted by BLB reader | May 15, 2008, 6:27 pm
  51. BLB reader,

    please keep in mind that rapists getting off the hook increases the chances of an *innocent* person being raped. As well, the rapists has already hurt an innocent person.

    Actually a very anti-*innocent* position.

    Posted by pisaquaririse | May 15, 2008, 6:48 pm
  52. “Am I ok with this happening, yes. I know that it is a horrible thing to say, but if it means keeping an innocent person out of jail I can sleep at night.”

    Bwaaaaa ROFLMFAO

    Where do we Even begin with that ABSURDITY,

    plaleese, you ARE funny…

    yea, it it means keeping an innocent person out of jail,

    yea Tell that to the numbers of Black men in jail who we are finding out through DNA that they were innocent all along–you know those white boys don’t feel the same when their ‘women’ are raped and the first ones they want to pin it on is Blacks, Latinos, Arabs…you know Attitudes would be Really different, if it was American sweethearts [especially daughters of the elites] being trafficked into, lets say, Muslim countries and they were being gang banged and it was being filmed so that the world’s men could go buy a $30.00 video and squirt to that, huh? Attitudes would be REAL different wouldn’t they, on that whole protection of speech argument–for justifying Rape Culture – Porn, violent porn especially.

    BET it wouldn’t be so funny if terms such as AGBGBBA,

    [going to get crass here Women’s Space, bear with me],

    which translates as, American Girls Being Gang Banged By Arabs or Africans, [pull the blinds off and see just how much porn is based upon racial hatred and white male supremacy including on a geopolitical scale].

    bet that SHIT wouldn’t be so damn funny huh??? If you think it is, tell it to your sisters, mothers, daughters, wives to be, wives, etc., and then LUTZ about it. 😉

    Got to love that DNA , would be nice if they started using some of that dna testing on some of those ole ‘frat’ rapes that weren’t prosecuted huh?

    BTW, protecting the innocent, in Theory yes, in REALITY,

    hell no,

    protecting the privilege maybe, protecting property owners maybe [you know corporate ownership/corporate welfare, LOL, oh yea got to LOVE that one],

    not only do we have a system that has incarcerated a high ratio of blacks for crimes they didn’t commit,

    we have a system that continues to put ridiculous burdens of proof in regards to rape, that even a retard could look at the evidence and know it was yes, indeed rape. But the reality is, juries often times won’t prosecute because of lets see, one particular case comes to mind in regards to a Jamaican student gang raped at one of the universities, the jury, if memory serves me right and I quote; “well we just don’t want to see the lives of these boys ruined over one mistake”

    its Those kinds of attitudes that probably help many men sleep at night.

    Personally though, we could argue this all day, and the attitudes would still be the same. You see its not about hating men or hating sex or being a femi-nazi, and all that other circle jerk b.s..,

    its about hating the mentality that women are “inferior” [and they thought only the fundie Mullahs spoke like that, Bwaaa, LOL] and that,

    rape isn’t like a big deal, ESPECIALLY if its the rape of a Black woman or Asian woman or Latina Woman or Arab Woman, or a White woman raped by White men [including those Assimilated males in white culture].

    you know that whole ‘she really wanted it’ thinking.

    I wonder how many Black men in prison right now, or Latino men, how they would respond to that ‘if it means keeping innocent person out of jail’ and the ‘I’m ok with this happening’?

    See:

    http://law.wisc.edu/m/ngm9y/findleywarfall01.pdf

    ~deliberately using commas and improper grammar~

    ~~Complacent boot-licking sympathizers ‘always’ attack grammar~~

    Posted by Tasha | May 15, 2008, 7:59 pm
  53. BLB, i wasn’t suggesting the burden of proof be lowered. Just trying to point out that I could see it making the intention of this tort ineffective in the same way it currently undermines the possibility of conviction with rape cases.

    Still, I used to feel the way you do about the innocent not being sent to jail even if it means some guilty parties don’t. I don’t agree with ‘jail’ and ‘punishment’ – so i guess I’m speaking hypothetically here… but when you see the way the legal system promises to uphold justice and then fails so miserably over and over again you start to think that if a few innocent people are going to jail then okay, if it means a few innocent victims are being protected or seeing justice. I guess what I mean is that either way innocent people are suffering, whether inside or outside jails.

    Tasha, i won’t attack grammar as a boot licker… yet i’d like to say that sometimes it is hard to follow or keep up with what you are saying because of the way you write. That doesn’t mean you should change because you write with so much passion and emphasis and about things that are really worthwhile for me or anyone to take the time to read. (Even if it is a little scary to dive into.)

    I agree with you about the switcheroo on attittudes to rape depending on the race of the victim. It’s the same way that we (a generalised we, not you and i specifically) look at horrific acts of violence against women in non Western cultures and see it as somehow different or motivated by different reasons than the violence we experience at home. We don’t see those women as women like us we see them as another ‘culture’ or from another place, as something alien rather than human.

    Posted by Ate | May 16, 2008, 1:34 am
  54. Ate,

    LOL, the comments at the bottom are just one of the few signatures that I sometimes will add on and it was not directed toward any of the women here or to you. It was simply a political statement which yes, does have to do with how language is used to subjugate people,

    or especially, how the patriarchal/elitist institutions have used language throughout time to hold that place of authority and that reinforcing the colonized mindset, woman, class or race, etc. [interestingly religions have and still do the same thing–take for instance, the persecution of those men who printed up the Bible for the common masses–one example]

    what is important, is that we think beyond the box so to speak,

    like you said..and you nailed it,

    “Even if it is a little scary to dive into.”
    🙂

    Posted by Tasha | May 16, 2008, 1:35 pm

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