Negligent Sex?
Wednesday, May 18, 2005
A Massachusetts court has recently had to resolve the question, as a matter of tort law, what duty of care a pair of non-married adults owe to each other for injuries resulting from consensual sex between them.
I'll leave the details of the case for those with strong stomaches who are willing to read the opinion found in the preceding link. In summary, however, the plaintiff (male) was injured when the defendant (female) changed her position during the middle of intercourse.
The trial court granted summary judgment in favor of the defendant, finding that, as a matter of law, there was no applicable standard of care between two consenting adults engaged in sex. Consequently, one of those adults could not be liable for negligence in connection with injuries suffered by the second adult.
The Massachusetts appellate court affirmed the trial court's holding, but declined to support its rationale that there was no duty of care. Instead, the appellate court reasoned:
So, the next time you find yourself having sex in Massachusetts, be careful not to do anything "wanton or reckless". Is everyone clear on that?
Of course not. The trial court was right to find that there was no duty of care. Consenting adults "assume the risk" when they venture into the bedroom and there is no workable way for courts to arbitrate injuries sustained in these circumstances. The appellate court has introduced a who new scope of human endeavor to the scrutiny of the courts and we cannot imagine what new judicial horrors will befall us as we begin to litigate what kinds of sexual activity are "reckless" and which are merely "grossly negligent".
A number of legal blogs have already taken up the case, including Eugene Volokh, Christine Hurt and Walter Olson.
Of these, Professor Hurt has the most interesting observation:
Interestingly, the court mentions that the policy behind sports assumption of the risk ("no duty") cases is that if everyone involved in a sport had a duty to use reasonable care to one another, then that might have a chilling effect on sports participation. The court did not reiterate that policy with regard to sexual activity, though!
Wednesday, May 18, 2005
A Massachusetts court has recently had to resolve the question, as a matter of tort law, what duty of care a pair of non-married adults owe to each other for injuries resulting from consensual sex between them.
I'll leave the details of the case for those with strong stomaches who are willing to read the opinion found in the preceding link. In summary, however, the plaintiff (male) was injured when the defendant (female) changed her position during the middle of intercourse.
The trial court granted summary judgment in favor of the defendant, finding that, as a matter of law, there was no applicable standard of care between two consenting adults engaged in sex. Consequently, one of those adults could not be liable for negligence in connection with injuries suffered by the second adult.
The Massachusetts appellate court affirmed the trial court's holding, but declined to support its rationale that there was no duty of care. Instead, the appellate court reasoned:
Whether persons involved in consensual sexual relations owe each other a legal duty of reasonable care in the conduct of those relations is a question of first impression in Massachusetts. Generally, as the plaintiff claims, tort law requires that a duty of reasonable care be exercised to avoid injury to others. Reasonable care is determined by the "standard of conduct demanded by the community for the protection of others against unreasonable risk." Restatement (Second) of Torts § 283 comment (c) (1965). However, "t should be recognized that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Prosser & Keeton, Torts § 53, at 358-359 (5th ed. 1984). Here, the defendant can be found liable to the plaintiff for his injuries only if we determine that the defendant owed him a legal duty of reasonable care in the conduct of their consensual sexual relations. If we determine that no such duty of care existed, the defendant is entitled to summary judgment. See Dhimos v. Cormier, 400 Mass. 504, 507 (1987).
* * *
While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, 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. "The words 'wanton' and 'reckless' are . . . not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See Cohen v. Davies, 305 Mass. 152, 156 (1940) (indifference to consequences distinguishes wanton or reckless behavior from negligence). Since "[t]he essence of wanton or reckless conduct is intentional conduct . . . which . . . involves a high degree of likelihood that substantial harm will result to another," Commonwealth v. Welansky, supra, citing Restatement of Torts § 500 (1934), we believe that a fact finder is capable of recognizing such extreme conduct, impartially and without prejudice, even in the context of consensual sexual behavior.[7]
* * *
While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, 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. "The words 'wanton' and 'reckless' are . . . not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See Cohen v. Davies, 305 Mass. 152, 156 (1940) (indifference to consequences distinguishes wanton or reckless behavior from negligence). Since "[t]he essence of wanton or reckless conduct is intentional conduct . . . which . . . involves a high degree of likelihood that substantial harm will result to another," Commonwealth v. Welansky, supra, citing Restatement of Torts § 500 (1934), we believe that a fact finder is capable of recognizing such extreme conduct, impartially and without prejudice, even in the context of consensual sexual behavior.[7]
So, the next time you find yourself having sex in Massachusetts, be careful not to do anything "wanton or reckless". Is everyone clear on that?
Of course not. The trial court was right to find that there was no duty of care. Consenting adults "assume the risk" when they venture into the bedroom and there is no workable way for courts to arbitrate injuries sustained in these circumstances. The appellate court has introduced a who new scope of human endeavor to the scrutiny of the courts and we cannot imagine what new judicial horrors will befall us as we begin to litigate what kinds of sexual activity are "reckless" and which are merely "grossly negligent".
A number of legal blogs have already taken up the case, including Eugene Volokh, Christine Hurt and Walter Olson.
Of these, Professor Hurt has the most interesting observation:
Interestingly, the court mentions that the policy behind sports assumption of the risk ("no duty") cases is that if everyone involved in a sport had a duty to use reasonable care to one another, then that might have a chilling effect on sports participation. The court did not reiterate that policy with regard to sexual activity, though!
