Intentional Sex Torts

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Since 2005, four states have finally recognized that fraudulent inducement of sex is rape. Not just immoral, not just “boys being boys” behavior, but misappropriation of a woman’s personal right to choose who invades her body. Perhaps surprisingly, the first state to recognize fraudulent inducement of sex as a basis for rape was Alabama in 2005. California, Michigan, and Tennessee followed suit the following two years, and Peter Koutoujian of Massachusetts filed a similar bill in February, 2008, which, when passed, will make Massachusetts the fifth state to recognize the crime of “stealing” another’s sexual prerogative.

For decades, feminists such as Susan Estrich have argued that rape has many forms, and often occurs in contexts not involving physical force or violence. While women have always known this, most (male) judges in the U.S. publish sentiment in criminal and tort cases reflective of an inappropriate “boys will be boys” mentality. For example, a New York judge had the nerve to write in 1975:

“So bachelors, and other men on the make, fear not. It is still not illegal to feed a girl a line, to continue the attempt [to obtain sex], not to take no for a final answer, at least not the first time. . . . [A] male [will] make promises that will not be kept, . . . indulge in exaggeration and hyperbole, or to assure any trusting female that, as in the ancient fairy tale, the ugly frog is really the handsome prince.Every man is free under the law, to be a gentleman or a cad.” (People v. Evans).

Thankfully, this mentality appears to be dying out. In a world filled with dangerous sexual diseases, it is particularly important to protect women’s rights to protect their own bodies, not just against physical violence, but against fraudulent inducement of sexual decisions and all of the dangerous consequences that can result from a lack of truly informed consent to sexual relations. For more background about the need for tort law to respond to the reality of sexual misappropriation, see my new article, Intentional Sex Torts, to be published in the Fordham Law Review in the fall of 2008.

— Deana Pollard Sacks

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0 Responses to Intentional Sex Torts

  1. AshleyJax says:

    Thank you for this – I completely agree!!

  2. OneSidedDialogue says:

    I feel this is not progress, that it:

    1) Actually reaffirms and validates certain perceptions of women, men, and sex that are ultimately detrimental to gender equality.

    Implicit in the argument already is an idea that women lose value after having sex, that, and the applications of contracts to our bodies in a way that commodifies sex, and places our intimacy in the (typically male-dominated) language of contracts. The relations imposed by surrounding sex in contract terms like inducements already subjects our bodies as sites – as if bodies are venues for rent.

    The thing that makes me uncomfortable is how this ties in with our sex for sale culture. Now, not only are the bodies of men and women used in the pornography of advertising, but they come with contracts to match.

    This further crafts sex as prostitution by placing it in a model where there is a contractual benefit to sex. What we are saying is that if someone lies about their salary to a potential partner, or lies about having a yacht, in order to get sex, that it was implied that there would be some benefit to having sex, essentially, what the law is saying is that fair payment for sex was not delivered – it ties sex into material benefits of some kind, thus changing it from a possibly liberating activity into just another for sale sign in a world where everyone has a price.

    2) Informed consent to sex is a myth.

    The actual social or emotional consequences of sex with another human being are often unknowable or unpredictable. I would argue that no one, woman or man, can consent to their first time, as they have no real idea of what sex is, what sex will be like, how they will feel afterwards, what social repercussions there may be, there is no possibility for informed consent, just guesswork, based on the experiences of others and from literature which is already laced with patriarchal notions of what sex is, how we should feel, and what sex should be for us. Worse, everyone has conflicting and particularized ideas on what sex should be like. Unfortunately, counter-patriarchal literature can be just as unhealthy and inapplicable. Ideas like”all sex is rape”or that every sexual encounter is essentially a woman being exploited – that oral sex is demeaning – etc, reinforce that same sense of guilt and shame that women are made to feel the morning after.

    And even beyond the first time, there are encounters where full consent is given with truth and at the time everything goes well, and then days later there are regrets anyways – friends approach you, you overhear a conversation where you are called a slut, you wish you could go back to being friends but now it’s too late – yes, consent allows you to accept an assumption of risk – but often, the risks are unforeseeable – the consent is not and cannot be considered informed.

    3) STIs/STDs are a shared risk and distract from the deeper and more serious questions, or are perhaps part of a different set of questions.

    With or without inducements, both parties face risk in the”transaction”. Granted, men do not face the exact same degree of risk during sex, but it is close enough and the severity of infection is similar. I also feel this issue is not at the core of what is being discussed.

    4) What constitutes an inducement? What statements are material?

    Further, what constitutes inducements? If someone asks me how many relations I’ve had and I reduce the number, or if I say I’m a 36C when I’m not, is that an inducement? Past relations are a material fact which is correlated to the risk of STIs/STDs. What about protection? What if I say I always use condoms and it’s generally true, that I have had sex three or four times without? How great does the discrepancy need to be? What if I say I’m just looking for fun when really I want to find someone who loves me? Or vice-versa?

    I discussed this with my guy friends and they brought up a somewhat predictable but never-the-less relevant argument:

    Is makeup then false advertising? Push-up bras? Nice clothes when I normally dress like a slob? If a man seeks relations with a girl he is making a time investment, if he is doing so under the false premise that her”value”(keep in mind, it is this consent/contract system that contributes to positing relative values in women) is not what he has been led to believe, than has he been robbed of his time to find someone who is actually what he is looking for as opposed to just being the image of it? Has he been deceived or wronged?

    What about cheating? If I cheat on my partner and then we have sex there is an implied promise that I am in fact loyal when I am not being loyal, the sex we are having is happening with that inducement. Is that rape?

    5) More sex governance undermines the privacy of women and men.

    More, is making sex a matter of public record a practice we want to engage in? Should a bureau of statistics keep track of who is having sex with whom? Should an excel spreadsheet be available for every partner so I can make a more informed choice? Whether or not we had oral, anal, or vaginal sex (each carries differing degrees of risk for STIs/STDs)? Does it undermine agency and decency to thrust the government into what is among the last bastion of our freedoms?

    I am not without sympathy for those who have”given”sex under false pretenses. A hug with feigned affection, an unfelt”I love you”, a disloyal”partner”, lies about sexual history, a promise that there will be more than just the night . . . But I live in a glass house, I have felt pressured to say an unfelt I love you, I said I’ve been with one or two less to keep from double digits (“will they think I’m a whore?”) , and we all live in glass houses. Only at present, that glass is tinted, this philosophy of law strips that.

  3. Ann Bartow says:

    “OneSidedDialogue” posted the identical words in the comments section of Above The Law, here:
    http://abovethelaw.com/2008/05/lying_to_get_into_someones_pan.php#comment-586802
    Moreover, OSD shares an e-mail address with someone who has left fairly abusive MRA type comments here in the past that did not make it through moderation. With those caveats, I decided to let this comment post, but note that given that the author has not even read the described article, it seems very calculated to derail discussion of Sacks’ actual analysis.

  4. first time caller says:

    The comment, while unusually lengthy for such a short post, seems to address the issues/arguments alluded to, if not fleshed out, in the post (sex as contract, lies as fraudulent inducement, STD as tortious harm, etc.) and some potential problems that pop to mind when the post is considered. Is this not allowed? If we must read the underlying article before commenting on the post promoting the article, why isn’t the article linked to in some fashion? And if no comment is worthy if based only on the partial understanding provided by the post, why no similar lambasting of AshleyJax’s uninformed agreement?

    The comment seems to raise some obvious potential shortcomings to an intentional sexual tort regime. I certainly hope that reading Prof. Sacks’ full article lays to rest these potential bogeymen, but I – like the commenter – apparently can’t read it until the Fall. Thus, we are left commenting on a short post. Or not. Are we holding off on all discussion until Fordham puts it out? If so, why the post?

    BTW – what is an “MRA type comment”? I’m not up on the lingo.

  5. Ann Bartow says:

    “first time caller” – this is a blog by and for feminist law professors. Prof. Sacks put up a post that enabled her colleagues to see what she was working on. She doesn’t owe you anything, nor do I. Marc Randazza decided to use her short post as a way to leverage himself as much visibility as possible, in a superficial and distortive way. That he couldn’t wait until the article was actually available to start trashing it is an issue you can take up with him.

    If you don’t know what an MRA is, try here:
    http://finallyfeminism101.wordpress.com/purpose/
    That blog is probably a better place for you than this one.

  6. first time caller says:

    My apologies. I was unaware that I was not welcome here.

    “When we speak we are afraid our words will not be heard or welcomed. But when we are silent, we are still afraid. So it is better to speak.”- Audre Lorde

  7. Ann Bartow says:

    The “we” as applied in the header pertains to the folks in the blogroll. You appear to work at a large law firm, so I’m sure you have plenty of alternative outlets in which to have your say.

  8. OneSidedDialogue says:

    I feel that Intentional Sex Torts is a subject that could really use more exploration and I am really excited that Sacks’ is weighing in on the topic.

    And I agree with Ann, after it went to moderation the realization came that a more appropriate space for the commentary could have been chosen, which is why I posted it on ATL. I would not have posted on MR’s blog because I disapprove of the way he approaches people and ideas.

    Regardless, looking forward to a good read.

  9. OneSidedDialogue says:

    I think my last post would create drama… as would this one and would be perfectly happy if you removed them.

  10. Pingback: Feminist Law Professors » Blog Archive » Deana Pollard Sacks, “Intentional Sex Torts”

  11. Ann Bartow says:

    Ha! Apparently some idiots are calling One Sided Dialogue and First Time Caller women and feminists to boot. Guess those guys probably think they have a claim for intentional infliction of emotional distress – they got called “girls” in front of the entire Internets! :>) (Thanks to J. for pointing this out and giving me a good laugh).