Wampum

Wanton and Reckless Sex Bad, Negligent Sex OK

I wonder what James Dobson would make of the decision in a recent Massachusetts lawsuit. Link via Walter Olson at Overlawyered.

The case involves the type of mundane, everyday facts that one often encounters:

The summary judgment record, viewed in the light most favorable to the plaintiff … establishes the following facts.

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. While the couple had practiced what the defendant described as "light bondage" during their intimate relations, there was no evidence of "light bondage" on this occasion. 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.

The Massachusetts court found that simple negligence would not support liability. In order to impose liability:

we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.

In so holding, the court noted that the lack of uniform standards of sexual behavior contributed to its decision:

We must determine whether the application of a standard of reasonable care to private consensual sexual conduct is appropriate or even workable. Questions of fact that would arise from these circumstances must be susceptible to consideration by a fact finder without prejudice and in a spirit of impartiality. Addressing a like issue in a different context, the Supreme Judicial Court recognized that "in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic" as prior precedent had suggested, it could no longer apply the statutory prohibition … against "unnatural and lascivious" acts to private, consensual adult sexual conduct…

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, (citations omitted).

Surely James Dobson and others would decry the lack of a “consensus of community values or customs defining normal consensual sexual behavior.” They may also not approve of permitting an unmarried man to sue his paramour for negligent sex.

As an aside, one might expect that the suit for negligent sex would harm the “long-term committed relationship.” I doubt it as I suspect that the defendant was hoping the plaintiff would prevail. As Eugene Volokh has suggested, my guess is that the defendant had a personal liability insurance policy that would pay any judgment. The real dispute may have been between the couple, as a couple, and the insurance company.

The doctrine of intra-family immunity would bar such a suit between husband and wife. That doctrine exists, in part, to prevent a collusive suit where both plaintiff and defendant benefit by the payment from a third party.

The same policy of preventing collusive lawsuits would be promoted by extending that doctrine to “committed long-term relationships” of whatever gender. That, of course, would be treating gay and lesbian couples as well as unmarried heterosexual partners as if they were married. Should we extend the immunity to those umarried couples? I await Dr. Dobson’s answer.

Posted by Dwight Meredith at May 21, 2005 11:06 AM | TrackBack