Sunday, May 4, 2008

Intentional sex torts - the reactions

Well, that post on Feminist Law Profs about intentional sex torts was received about as well as expected.

I'm not going to directly link or quote the more misogynist follow-up blog posts. If you're really interested, there are follow-up posts at Above the Law and Women's Space. But the arguments can pretty much be summed up as follows:
  • Of course it's not rape! As long as you're not physically violent, it doesn't matter if your partner would want to have sex absent the fraud--anything goes.
  • Employing fraud for the purposes of getting laid is a natural, unavoidable practice.
  • Fraud is part of the "thrill of the chase." If everyone were honest, dating would be a lot less fun.
  • But women do it too--they hath one face, and make themselves another! Because wearing makeup and a push-up bra is totally the same thing as saying you're not HIV-positive!
  • If we outlaw fraud for the purposes of getting sex, we must outlaw similar torts for the purposes of refusing sex, like giving someone a fake phone number.
  • This is just the government sticking its nose into your bedroom again.
  • This is really anti-feminist, because it assumes women don't have the capacity or responsibility to take care of themselves.
And, of course:
  • They're just ugly/man-hating/jealous that nobody wants to sleep with them.
  • If we didn't accept this, nobody would ever get laid!
What's so complicated about the idea that you shouldn't have sex with someone who doesn't want to have sex with you? (If you want to criticize the idea on legal grounds, that's one thing, but how can anyone defend the practice on a moral level?)

3 comments:

Renegade Evolution said...

it really is so much deeper than that. Lying to someone about having an STD/STI, that is grounds for a case involving grevious bodily harm. Some of this stuff, especially in follow up posts is very frivilous. A man (or woman) not disclosing they might like something kinky (which is also never an indication that they will demand it or pressure a partner into it) is simply not the same as, well, lying about an STD/STI, or rape.

jfpbookworm said...

I'll grant that lying about STDs is a special case, because it involves harm.

I think the idea has been tainted by what gets treated as a deal-breaker, and specifically by a few people positing "deal-breakers" that are extremely idiosyncratic, either to make the idea in general look ridiculous, or in an attempt to normalize those deal-breakers.

The example that appears to have prompted this was a case of impersonating someone's spouse for the purposes of obtaining sex. In that case, I think it's pretty reasonable to expect that, were it not for the fraud, that sex wouldn't have happened.

It's much, much harder to prove this sort of causation in most of the other examples being thrown around. Basically, the partner would have to make it known that the issue was a deal-breaker for him/her. My interpretation of the standard is not "without the misrepresentation he/she wouldn't have been interested at first," because sexual interest is complex and rarely attributable to a single source; it's more like a standard of "if this were disclosed immediately prior to sex, would he/she have changed his/her mind?"

That said, if I think someone's deal-breakers are frivolous, that doesn't give me the right to lie to him/her about them. Part of respecting people's autonomy means letting them make decisions for themselves.

Renegade Evolution said...

"That said, if I think someone's deal-breakers are frivolous, that doesn't give me the right to lie to him/her about them. Part of respecting people's autonomy means letting them make decisions for themselves"

i agree with that. if one is certain something would be a no go with someone, and lies about it, it is most certainly underhanded...still don't know if i would call it rape though.