Pollard Sacks on Intentional Sex Torts: Continuing the Discussion

I told you last week that we haven't heard this last of this.  Here's the latest roundup of the responses to Deana Pollard Sacks' article on "Intentional Sex Torts." 

First, the background.  The whole discussion began with Deana's post at flp last week.  (And remember what Deana's talking about is tort recovery not criminal liability--hence the name sex torts.  That distinction gets lost in a lot of the comments.)  That was picked up by Professor Marc J.  Randazza of Barry University's Law School at The Legal Satyricon, which led in turn to abovethelaw's discussion.  Lots and lots of comments at abovethelaw.

Then there's geeklawyer.  Yikes.  And two posts over at Simple Justice and here.  Bookworm takes it up here  and womensspace takes it up here.  Am I missing anything?  I want to talk a lot more about the substance of this shortly.

Update: A discussion board has now picked this up, too, and there's a brief note about it here.

Another update: Womensspace has extensive coverage and excerpts from the article  here.

Alfred Brophy

Comments

[Marc J. Randazza]

Volokh has two posts on it, as well as an article on the Huffington Post. Volokh's article is about the Massachusetts proposal, which is for criminal sanctions. But, that seems to be worth discussing at the same time, since it is really about the same issue.

http://randazza.wordpress.com/2008/03/10/watch-those-pickup-lines/

[And Don't Forget This Discussion...]

Lots of eye-opening analysis here:

http://www.biglawboard.com/blb/viewThread.jsp?threadId=16111&x=59#16111

[Marc J. Randazza]

Yes, it gets a bit sophmoric over there. I think that they should be more civil too... which is why I registered there and post under my real name.

Most of them are students... and engaging them as equals and helping them instead of writing them off could do wonders. You would be surprised at how much intellect exists over there (and on other message boards) -- if only anyone at our level would give a damn. No, all anyone at our level is interested in is jumping on the "there is too much free speech" bandwagon.

Law students and prospective law students are looking for a little bit of leadership -- and respond quite positively when you treat them with respect. When you might think they don't deserve respect is precisely the moment when you should show it. They aren't supposed to have great judgment. They aren't supposed to have their heads completely out of their asses. They are, for the most part, kids. They aren't idiots or assholes... they are testing their limits and all they need is someone to engage them on another level.

And, when they veer off into giggling fits over some joke that we aren't in on ... let them!

You would be surprised at what results you could achieve by acting that way. In real life, if you scream "you damn kids get out of my yard!", you're going to find flaming bags of dog poo on your porch on Halloween. If you engage them, they'll carry your groceries in from the car.

What nobody seems to get is that these kids, and the ones at AutoAdmit, look up to you. They admire you. Try showing yourselves to be worthy of that admiration, and watch the positive influence you can have.

Just try it as an experiment - if nothing else. The time you spend doing that will do a lot more good for the world than spending the afternoon writing another worthless law review article.

[Yeah, Al, stop writing those worthless law review articles!]

Hay Randazza,
Calling people "Bat. Shit. Crazy." makes them look up to you? And how do you have those magical editing powers at BigLawBoard.com that enabled you to post date and change your comment days later to make it seem like you disproved of a comment that said: "I wonder if her views will change after someone slips her some rohypnol." Are you an owner of that board?

[Marc J. Randazza]

1. Bat. Shit. Crazy. - No, it doesn't *make them* look up to me. Hell, I don't even know if they, or anyone else, does. I said that they look up to YOU... not ME... not US.

2. Editing -- actually, I posted "not cool" to the rohypnol comment immediately after the original poster. I added the parenthetical today, since I noticed that my condemnation of the rohypnol comment had found its way so far down that it might not be clear what I was saying was "not cool." I thought it was important to make that clear. Nothing was post dated.

3. No, I am not an owner of the board. I post there because I was asked to join a discussion.

[Yeah, Al, stop writing those worthless law review articles!]

So on May 10th, you can edit a comment you made on May 7th, and make it look like that was your comment all along? Can all the BigLawBoard.com posters do that? Or just you?

[Marc J. Randazza]

Is this "discussion" about the issue, or about BigLawBoard? I keep coming back expecting an actual "discussion," and instead I merely find this.

I am sure that it absolutely *devastates* you to learn that I criticized the rohypnol comment within minutes of its being posted. That must shatter your pre-conceived notions.

I'm sure that it further devastates you to learn that the only "edit" made was the addition of a parenthetical so that it would always be clear what I was criticizing - a post that made light of sexual assault.

Eeek! How can this be? How can a man criticize a stupid idea (that happened to be espoused by a woman), yet he also criticizes a post that makes light of sexual assault? World... view... crumbling...

Simply devastating.

To return to your question: If you have questions about Biglawboard.com, why are you asking me? Why not ask the board's operator (there is an email address on the site). Or simply post the question to the board.

Since the "discussion" here seems to be about anything but the actual subject at hand, I'd rather spend my time billing, writing, playing with my dog, riding my bike, or engaging in actual discussion.

[Yeah, Al, stop writing those worthless law review articles!]

More Randazza input from here (Got a screen grab in case he edits it later):

http://www.biglawboard.com/blb/viewThread.jsp?threadId=16111&x=59#16111

"Credited! And I wouldn't say it is flaming. Lets face it, this is an *awful* idea, and every stupid law started out as an awful idea.

The arguments against the law made by people streaming over from here are quite good, well thought out, and reasonable. That blog has a lot of nut-balls on it, but lets dig down in the compassion bag and see if we can't find something for them.

You don't turn that bat-shit-crazy on your own. I'm sure that a lot of them were abused, molested, raped, and otherwise mistreated. That is a place where they go to commiserate. Victims of abuse tend to blame themselves at times. What better way to remove that self-blame and self-doubt than to say "It couldn't have been my fault, this is how men are wired. Men are evil."

Not to say that anything that happened to them is their fault. But a victim does engage in self-doubt.

When you take people in that mentally weakened state, and then you introduce opportunists in the form of feminist professors who take advantage of them, you have a perfect storm of susceptible minds and Jim Jones type leaders.

Easily-led mentally damaged minions plus bitter and unethical svengalis usually leads to something much more harmful than their nutty blog comments. Most extremist cult-followers do far worse.

So here we come, arguing from a "position of privilege" (as they call it). If you see their cult-like state for what it is, we've done the equivalent of going to a Baptist Revival in order to preach Atheism. No matter how reasonable our arguments are, it will never matter. Their world would shatter if they had to come to grips with the fact that we can both disagree with them AND have no desire to rape them or hurt them (or anyone else) in any way...

Bottom line... read their dreck, and then think about how utterly miserable you have to be in order to think that way. Think of what it must be like to exist in their world -- a world where you believe that a full 1/2 of the population is just waiting for the chance to rape you. A world where EVERYTHING that is remotely funny or fun is a direct attack upon YOU personally. A world whose inhabitants are literally obsessed with fear, hatred, and paranoia.

When I read the comments over there, I feel sorry for them. They mistake their membership in a cult for "liberation." I hope that they eventually do experience liberation - but the real thing, not this kool aid that they've been served."

[Yeah, Al, stop writing those worthless law review articles!]

Oh, and what Randazza is cheering on is the trolling of a feminist blog, by leaving comments that seem to be from women, but the first letter of each sentence spells out things like BACK TO THE KITCHEN, and WGWAG (A racialized AutoAdmit acronym) because apparently the women at the blog totally deserve in Randazza World.

[Yeah, Al, stop writing those worthless law review articles!]

http://www.biglawboard.com/blb/viewThread.jsp?threadId=16111&x=59#16111

Author: Fantaschtick [841] ()
Posted: 05/11/08 05:07 PM
Flag: Best-Of Helpful NSFW Spam TOS Violation

The I Love Rape comment is hilarious.

[anonymous]

To "Yea, Al..."

-Your insinuations about Prof. Randazza's "mythical editing abilities" are a bit off. The website software allows any and all posters to edit their posts at anytime. There's no secret power that only law profs are entitled to.

-You're quick to attack Prof. Randazza for what you allege he originally posted (without any evidence at all), but you neglect to mention his posts like this?

"I know I must sound like the camp counselor here, or the old man yelling "you kids get outta my yard," but I do feel some responsibility to at least speak up as a voice of reason.

When you descend into too much of the frat-house banter, it takes as much away from your otherwise valid points as the insane babblings in the comments over at womensspace.

I'm not in charge over here, and I think you should be *allowed* to say whatever you want. Nevertheless, if you try and keep it civil, you will be amazed at how much more powerful your words become. Use your words like a doctor uses his instruments. Sure, you can remove an appendix with a blunt shovel, but wouldn't you rather use a fine scalpel?"

That seems like perfectly rational advice to me.

-I know that declaring all posters at BLB guilty by association is tempting, but I would hope that you'd try to support your arguments on the merits rather than engaging in such ridiculous smearing. You could stand to listen to Prof. Randazza's advice about attacking the idea rather than the person.

Cordially,

An anonymous poster from BigLawBoard.com

[Yeah, Al, stop writing those worthless law review articles!]

So when Randazza calls people "Bat. Shit. Crazy.," "Easily-led mentally damaged minions" and "obsessed with fear, hatred, and paranoia" that is attacking the idea rather than the person? Nice.

[kathy s]

While I certainly agree that there are reasoned arguments for and against creating a tort for fraudulent sex, I am always surprised at how quickly discussions like this regress to accusations about how feminists are anti-sex. I really don’t get this. If I’m in favor of securities fraud laws, am I anti-investment? If I’m in favor of the application of fraud laws to charities, am I anti-philanthropy? To dumb it down even more, if I criticize someone cutting in line at the grocery store, am I anti-food shopping? This kind of regressive argumentation, in my view, reveals a very rigid, sad and deeply skewed view of what sex is, even casual sex. I am a feminist and I’m not anti-sex – I just think that a good rule for living is that my own pleasure shouldn’t come at the expense of someone else’s pain (unless they want pain – but even die-hard B&Ders employ safe words!).

But the real question here is why the honest men aren’t lining up to yell back. Why would any of the chumps waiting in line like everyone else applaud the line-cutter? The real truth is that, just like in most other aspects of life, the liars make it worse for everyone. All those (pathetic) men who (can only) get sex by deceit, lying and trickery produce wary and mistrustful women. If we don’t know whom to trust, we’ll trust no one. And that means less sex for men (and women) – the honest and the liars. But even more importantly, the defense of lying is essentially a defense of crappier sex. All of those who decry honesty in sex as the ‘end of casual sex as we know it’ (oh please) are apologists (advocates?) for crummy sex. Wake up, fellas! Men with feminist partners report being happier and more satisfied in their sex lives than others (check out the study at http://www.alternet.org/blogs/peek/65468).

It turns out that it isn’t feminists who are anti-sex – it is the liars who want to keep us all mired in a world where the only sex (“as we know it”) is adolescent, dishonest, unsatisfying sex. I guess misery loves company.

[Marc J. Randazza]

Thank god... finally someone makes some intelligent and on-point comments. Kathy, you've got me half-wrong, and I only half-disagree.

First off, I hope you aren't referring to me in paragraph 1. I think that there is an element of the so-called feminist movement that is anti-sex. I also think that there are sex-positive feminists, such as my favorite, Naomi Wolf.

Paragraph 2 is pretty right on. I agree that men who get sex by deceit are, generally, pathetic... and you're right! They do produce mistrustful women, hence less sex for everybody. Less sex = more frustration. More frustration = more Jerry Falwell and Gail Dines types alike! Move over there, I'd like to sit at THIS table with you!

And, I'm not saying that the world would be worse if people stopped lying to get each other in the sack... lets face it, that sure isn't a gender specific "sin."

As far as the study goes -- you can make statistics say anything you want. But, anecdotally, I've found that smart, strong, confident women are way better in the sack than doormats and strippers. So, while I think the stats prove nothing, I still believe in the theory.

But lets come back around to what I'm against here: The intrusion of law into what should be a personal relationship. Want a confession? I have DEFINITELY lied to get some ass! Yep... I'll tell you a true story (dont worry, it is safe for work).

I was dating a girl for about two weeks. We hadn't slept together yet. We were, however, having a few drinks. I made some comment about Will Smith being a good looking guy.

She said "ew, gross... I would never sleep with a black guy."

I asked "why not? what difference does it make?"

"It's just gross. Not only would I never fuck a black guy, but I would never fuck a guy who had fucked a black girl," she said. "Have you DONE that?"

I certainly had. More than one. Now at this point, I'm pretty damn sure that if I had told the truth, no ass for me. So I lied. "Nope, never have."

That night, we banged...

So... did I lie? Yep. About a material fact? While it wasn't material to me, it sure was material to her! I eventually told her, during our breakup fight a few weeks later. I'm not sure what I was thinking, dating someone that was so bigoted anyway... but what can I say? We all have flaws, and I figured that maybe her racism wasn't so deep that it would really matter.

Should I be liable to her? Professor Sacks' theory suggests that the answer is "yes." I say "hell no."

But back to our cozy table... I'm with you. When guys lie about how much money they have, or what they can do for a girl, or whatever, to get a girl into bed... that sucks. I agree that we should all be honest. With the exception of the above tale, I can't really think of any other episodes where I decided to lie in order to "shoplift the booty." (but, I'm sure that I have).

But, ultimately, we become less human when we remove choice from our lives, when government gets too deeply wedged in our relationships. I've had people lie to me that I was their friend, only so that they could take advantage of me (not sexually)... that sucked. That hurt pretty freakin' bad. Would it be nice to be able to sue them? Yeah.. it would... but, I'd never support such a regime.

[Marc J. Randazza]

Apologies... perhaps it wasn't "safe for work," for everyone... what I meant was "not graphic."

[TS]

marc, your misogyny is so normalized that you think there was nothing wrong with lying to that girl to "bang" her and then using that lie to intentionally hurt her feelings (in that you in fact did lie to her), all because she's racist? oh, but you think that lying to women to bang them is wrong only a few sentences later. your little anecdote only proves just how oblivious you are.

[anonymous]

Al-

Again, do you have something to say about the substance of MY comments? Or would you prefer to just continue to take a few of Prof. Randazza's words out of context and consider that a moral victory?

Kathy-

I think you're going beyond the thrust of this discussion and focusing on a completely different issue. Of course there are situations where the state should regulate whether people tell the truth or lie, such as when dealing with securities or with testimony in court. The point is that in contrast, there are plenty of situations where the state should absolutely NOT be involved in whether people tell the truth or lie. Would you support a law making it illegal to lie to your friends and family? Do you think it should be a tort to tell an on-again off-again significant other that you love them when you're actually not sure?

These are all situations where your lie results in a harm to a third party. In each of those scenarios, it will make it harder for those people to trust other friends or partners in the future. But should it be a crime? Personally, I think the state should stay out of my personal relationships. I think that once people get past their knee-jerk reactions, you'll see that most truly progressive-minded feminists would agree.

TS-

And I take it from your comment that you've never told anyone a white lie? Perhaps told a significant other that they looked good in a pair of jeans, or that they were more attractive than some other individual? I don't see how you can distinguish Prof. Randazza's actions from either of those scenarios in an intellectually honest fashion, which leads me to believe that you're merely looking for an argument.

Cordially,

An anonymous poster from http://www.BigLawBoard.com

[anonymous]

An aside-

Kudos to the administrators of this board. You've created a forum where people can discuss interesting topics in a forthright fashion, and allow for comments to be posted without moderation, which I feel leads to a more open debate. Thank you.

[Marc J. Randazza]

TS, you wrote:

"marc, your misogyny is so normalized that you think there was nothing wrong with lying to that girl to "bang" her and then using that lie to intentionally hurt her feelings (in that you in fact did lie to her),"

I'm not sure where you got the "intentionally hurt her feelings" thing from. (It was more used to shore up my argument to her that we weren't right for each other).

You are right that I thought there was nothing wrong with lying to her at the time. And, I must confess that I feel no differently today. Perhaps I am oblivious and misogynist. If thinking that there was nothing wrong with that lie makes me misogynist or any other label you would like to paint me with, then I'll take the label.

You continue:

"all because she's racist?

It isn't that I am saying that racists are fair game for lies in bed. That would be a strange rule to employ. What I *am* saying is that the lie was material to her, not material to me. (I still don't see what difference the race of my former sexual partners makes).

"oh, but you think that lying to women to bang them is wrong only a few sentences later. your little anecdote only proves just how oblivious you are."

I do think that lying is wrong. On some level it was wrong of me to tell her that I hadn't slept with a black woman. But, I don't feel that I "invaded her sexual autonomy," nor that I "raped" her... perhaps you feel differently.

[Yeah, Al, stop writing those worthless law review articles!]

For some reason Randazza's description of his own sex life doesn't sound like a legal argument to me.