Stealing Sex, the New Frontier?

As if there aren’t enough problems with sex offender laws, a post over at Feminist Law Professors argues that we need an entirely new avenue of attack, intentional sex torts.  Apparently, women cannot be trusted to engage in the normal tete-a-tete that characterizes the interplay between men and women, and thus need to be shielded from the shifty and deceitful man who might lie to a woman in order to steal “a woman’s personal right to choose who invades her body.” Invades?  Yikes.  According to lawprof Deana Pollard Sacks:

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.

What does she propose the law protect helpless women against?

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.

Fraudulent inducement of sexual decisions?  Well, that cuts both ways, doesn’t it?  What about the woman who’s had a little surgical improvement?  Don’t men deserve a heads-up?  Tossing the “dangerous sexual diseases” phrase at the front is disingenuous, since this isn’t limited to concealment or denial of STDs, another matter entirely.  This is about “twinkle in the eye” type stuff, the sort that follows the all-time lamest pick-up line, “What’s your sign?”

Before someone bites my head off for that crack, let’s cut to the arbiter of all things sexual, Marc Randazza at The Legal Satyricon.

Expanding tort law to cover dishonest sexual encounters is a horrifying proposition. We have to be left to be human — even if that means that some immoral, abhorrent, and even disgusting behavior will leak through the sieve of our legal system. There simply does not need to be a law to cover every bit of sketchy behavior. For as long as we live and love, someone will lie about their feelings to someone else. Hearts will break. Men and women will lie to each other. Men and women will sleep with each other for the wrong reasons. I’m not simply arguing that “boys will be boys.” I am arguing that this is the yin to the yang of love, passion, and ecstasy.

In other words, people will be people, and this call for a new tort cause of action by women against men for fraudulent inducement is a way to interject the law, from the feminist frontier, to save women from the evil, deceitful male who would say anything to fool the helpless female and undermine her rights to choose.  Even the way Sacks presents the problem, “invade her body,” smacks of assault.  She doesn’t make the ritual sound very inviting.

I recently discussed the  Maryland Supreme Court decision allowing a woman to withdraw consent from sex in mid-act, and the potential mischief that can cause.  But this obviously isn’t enough to sate the feminist vision of women’s hegemony, or their ability to attack men should they feel maligned.

The goal used to be about empowering women to take charge of their own lives and bodies.  This included the power to play the sex-game with men on equal footing,  It’s unclear whether there is a feeling that they’ve accomplished this goal and need new dragons to slay, or have given up and decided to move in a different direction.  My sense is the latter, since they have overlaid a maternalistic approach that tells women that they will protect them from their own ignorance and gullibility, apparently because they feel that women are incapable of protecting themselves from lying men by making their own choices.

This goes beyond the silly into the nutsy.  Remember the “wild and crazy guys” from Saturday Night Live?  Are they criminals?  Are they tortfeasors?  Or are they a parody of how hormones affect idiots.  And this isn’t a phenomenon that afflicts only the males of the species.  It is important to note that this is not about a man lying to a woman about his HIV status; that’s a matter of concealing a deadly disease, not about sexual inducement.  And that cuts both ways.  This is about the purported need to save women from facile-tongued men who would undermine their right to exercise their sexual options based on legally-compelled factually-accurate representations. It brings new meaning to Meatloaf’s “Paradise.”

To prove its need, Sacks quotes from the 1975 New York decision in the trial of Marty Evans by Justice Edward Greenfield:

“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).

As it happened, my former partner was Marty’s lawyer.  Marty was called “The Snowman” in the newspaper, because he gave women one heck of a “snowjob” to get them in bed, way beyond anything ordinary men would even consider.  This was about as extreme as “fraudulent inducement” was ever going to get, and Justice Greenfield was castigated for his decision in this case (it was a judge trial).

Justice Greenfield decided that there were places where the courts didn’t belong, and this was one of them.  Whether the verdict would have been the same today is doubtful.

To wreak havoc with the natural give and take between men and women by sticking the law into the middle of every conversation, pick-up line, and contact goes beyond the pale.  Being an old married man, none of this effects my life, but I have hope that young people will be able to enjoy the mating game that led to maturity and marriage without being required to have a lawyer oversee and parse each whisper for tortious accuracy.  And I bet most women won’t want Deanna Sacks listening in either.  It just seems so . . . kinky.

11 thoughts on “Stealing Sex, the New Frontier?

  1. Other Steve

    “…I have hope that young people will be able to enjoy the mating game that led to maturity and marriage without being required to have a lawyer oversee and parse each whisper for tortious accuracy.”

    I assume you are talking about me. Might you be available for retainer on this kind of case?

  2. SHG

    Hey OS.  Yes, every young man will need counsel as he attempts to court.  I suggest a general retainer.

  3. Other Steve

    So, putting aside my request-in-jest for you to represent me in a non-existent “sexual tort” claim based on legal principles that have yet to be adopted…

    What is a general retainer?

  4. SHG

    A question for another day and another post, lest we veer off into a wholly tangential discussion.

  5. Sara Anderson

    What about the woman who’s had a little surgical improvement? Don’t men deserve a heads-up?I don’t get it. Why would passing off surgically-altered body parts as natural constitute fraud?

  6. Kathleen Casey

    Because it is not really her is it?

    But most men wouldn’t mind. They are attracted to our gifts of charm, intelligence, grace, generosity, common sense, and our accomplishments — what we can do to be productive. Isn’t that true Scott? LOL.

  7. SHG

    Yup.  That’s it.  We don’t care about surgically altered body parts, as long as they surround a brilliant mind and a generous heart.  And that other stuff too.

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