Deana Pollard Sacks' Intentional Sex Torts article sure generated a lot of talk.
Let me start with a brief statement about the article (available here). The key point is that when there is a material misrepresentation (like a man telling a woman he's not married or does not have a sexually transmitted disease), then that vitiates consent to sex (or in torts lingo, to battery). Of course, there is already liability for transmission of STDs (Pollard Sacks has an article in the Minnesota Law Review in 2007 that discusses this). And please keep in mind that she's talking about cases of material misrepresentation in a torts, not a criminal law context. Both of those caveats have been lost sometimes.
I think this is pretty straight-forward intentional tort law, applied in an area that we don't often think about. My initial take on this was: interesting idea and fact patterns, and therefore not otherwise all that radical. Yet, despite what I see as mainstream torts analysis in a new context, the article has received some pretty harsh responses. I want to talk about the responses in two groups--those that respond to the legal arguments and those that respond to the idea of imposing liability (what you might call the policy or the cultural arguments).
There are some good legal arguments that one might raise against this: like, courts are reluctant to impose liability for emotional distress or for dignitary torts. So, if people can show transmission of an STD (and they didn't assume the risk), they can recover for that harm. However, we perhaps should be wary about imposing additional liability in the absence of physical harm. (I'm not advocating this, I'm merely pointing out that there are some decent arguments one might raise here.)
But, we don't hear a lot of those reasonable arguments. We do get some analogies that don't fit. For example,
by way of rebuttal to Pollard Sack's argument that those who misrepresent
their marital status may be held liable in tort for battery, one person uses an analogy to a woman who interferes with a man finding someone to have sex with:
If we let tort law creep into our everyday sexual relationships, will young men be able to sue the ugly friend for tortious interference? You know, you go out for the night, you bump into that girl you flirted with a few days ago. The two of you hit it off. The two of you decide to go home with each other, and BAM! Out of nowhere comes her ugly friend who whines “I wanna go home, and you HAVE to come with me! We prommmmmissed, it was a giiiirls night!”
"No" is the obvious answer to the question. Those two situations aren't comparable. But I guess we can all have a chuckle at the expense of people who're lied to. Maybe soon we'll be laughing at the victims of financial fraud, too.
Or take this case:
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?
I think this person doesn't understand the meaning of material misrepresentation. Materiality is what makes wearing a push-up bra different from telling a partner you're not married.
What we hear more of are the arguments against liability for cultural or policy reasons. One common suggestion is that allowing someone to sue for material misrepresentation paternalistic.
People are spending a lot of energy on this, having a laugh at the expense of women who've been deceived on material issues (like is the person they're having a relationship with married or does he have a STD). Look at this "final exam". Real funny and oh, so creative. Then there are the personal attacks, like this. One law review editor gets into the act, too. (By the way, I think the word he's looking for is "crackpot" not "crockpot").
This says a couple of things about the legal blogosphere. You have to look carefully for good legal arguments. Moreover, the blogosphere pretty quickly degenerates into substance-less mud slinging and the use of epithets.
Comments