INTENTIONAL SEX TORTS

Deana Ann Pollard Sacks, Texas Southern University

Abstract

Intentional tort law generally protects personal autonomy and self-determination vigorously by requiring fair disclosure before consent to physical contact is considered voluntary and valid. A glaring exception exists relative to consent to sexual relations. Although American law historically has provided remedies for fraudulent or other tortious inducement of sexual relations, current sex tort jurisprudence offers virtually no protection. The law's contemporary “caveat emptor” approach to cases of sexual autonomy infringement is inappropriate because it departs from fundamental principles of intentional tort doctrine. In addition, the current law is dangerous because it supports “false” norms that sexual misappropriation is acceptable. Current law fails to protect personal privacy and public health, and fails to engage the law's potential to influence social conduct positively.

Intentional sex tort law should be reformed so that it is consistent with prevailing sexual norms and principles of intentional tort doctrine. Allegations of tortious interference with sexual autonomy should be analyzed consistent with traditional battery jurisprudence bearing on the issues of intent to offend and offensive contact. Exceptions to the defense of consent should also be adopted. The fraud exception should apply, utilizing established principles of materiality and justifiable reliance. In addition, the law should create a heightened duty of disclosure between sexual partners consistent with informed consent doctrine, to encourage fair disclosure and assure fairly informed, voluntary sexual consent.