Posted by Eugene Volokh:
Negligent Sex
http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116334050
(Warning: This post might be seen as needlessly salacious, except it's
actually about a real case that poses a real and interesting legal
question.)
Some excerpts from [1]a Massachusetts appellate court just handed down
yesterday:
The plaintiff and the defendant were in a long-term committed
relationship. Early in the morning of September 24, 1994, they were
engaged in consensual sexual intercourse. The plaintiff was lying
on his back while the defendant was on top of him. The defendant's
body was secured in this position by the interlocking of her legs
and the plaintiff's legs. At some point, the defendant unilaterally
decided to unlock her legs and place her feet on either side of the
plaintiff's abdomen for the purpose of increasing her stimulation.
When the defendant changed her position, she did not think about
the possibility of injury to the plaintiff. Shortly after taking
this new position, the defendant landed awkwardly on the plaintiff,
thereby causing him to suffer a penile fracture.
Although this was generally a position the couple had used before
without incident, the defendant did vary slightly the position
previously used, without prior specific discussion and without the
explicit prior consent of the plaintiff. It is this variation that
the plaintiff claims caused his injury. . . . The plaintiff's
injuries were serious and required emergency surgery. He has
endured a painful and lengthy recovery. He has suffered from sexual
dysfunction that neither medication nor counseling have been able
to treat effectively. . . .
There are no comprehensive legal rules to regulate consensual
sexual behavior, and there are no commonly accepted customs or
values that determine parameters for the intensely private and
widely diverse forms of such behavior. In the absence of a
consensus of community values or customs defining normal consensual
sexual conduct, a jury or judge cannot be expected to revolve a
claim that certain consensual sexual conduct is undertaken without
reasonable care. . . . We conclude, therefore, that there was no
legal duty of reasonable care owed by the defendant to the
plaintiff during their consensual sexual conduct.
The court went on to say that reckless sexual conduct -- involving
"voluntary taking of risk" and "indifference to consequences" -- might
be actionable, but merely negligent (i.e., careless) conduct in which
a defendant simply "did not think about possible injury to the
plaintiff" is not.
Seems like the right decision to me. I sympathize with the poor guy (I
almost said "poor schmuck," but I've resolved to make this post as
free of double entendres as possible given the subject matter); I hear
that penile fractures are really bad stuff. And recall that negligence
is indeed the normal rule as to physical injuries -- if you injure
your lover while driving, walking, doing housework, or whatever else,
you can be held liable if you were acting negligently.
Also, while I at first thought the litigation rather ungentlemanly
(even if your sweetie [DEL: screwed up :DEL] made a mistake in the
sack, it doesn't seem right to sue her for it), I realized that
there's a good chance that the woman didn't object: If she has a
personal liability policy as part of her homeowner's or renter's
insurance (many people do), the insurance company would pay the claim,
the man would give back her deductible, the woman would feel a little
less bad, and the man would at least get some money as meager
compensation. (Is that the new definition of "gentleman" -- "He would
never sue an uninsured woman who injured him during sex, and he would
always pay back her deductible"?) Nor would this be insurance fraud;
if the facts are as plaintiff alleges, then the injury was genuine,
and the claim quite honest.
Still, the prospect of litigation involving experts on how reasonable
people have sex (sexologists? prostitutes?), debates about how
sexually expert we should expect the reasonable person to be
(especially in the throes of passion), attempts to reconstruct exactly
who moved how and why, and jury verdicts about how the Reasonable
Sexual Partner would have had Reasonable Sex boggle the mind. And,
hey, if we impose legal duties on people, shouldn't sex ed class teach
students how to properly discharge their duties? So I'm with the
judges on this one.
References
1.
http://www.malawyersweekly.com/signup/opinion.cfm?page=ma/opin/coa/1108105.htm
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