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).