Deana Pollard, “Sex Torts”

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The abstract:

Intentional tort law generally protects personal autonomy and self-determination vigorously by requiring fair disclosure before consent to physical contact is considered voluntary and valid. A glaring exception exists relative to consent to sexual relations. Although American law historically has protected victims of sexual deception, current sex tort jurisprudence offers virtually no protection for fraudulent inducement of sexual relations. The law’s contemporary”caveat emptor”approach to civil sexual battery cases has played a role in shaping American sexual norms and sexual behavior that threaten America’s economic, cultural, psychological, and physical wellbeing.

Civil sexual battery cases should be analyzed consistent with other civil battery cases in order to protect this most private aspect of personal autonomy. Existing fraud and battery jurisprudence bearing on the issues of materiality, justifiable reliance, what constitutes”offensive”contact, and bases for vitiating consent to physical contact, including informed consent doctrine, could be engaged in sexual battery cases. This article argues that current sex tort jurisprudence inadequately protects sexual autonomy, which is contrary to public policy and undermines the law’s consistency and legitimacy. Accordingly, sex tort law must be reformed to advance the state’s interest in public health, including healthy interpersonal relationships.

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