St. Maximos' Hut

One sign of a secular society is that the law is expected to answer all questions. This paper, available on SSRN, is a good example of that. It does seem that some morality might be sufficient to solve this problem, without creating new torts.

"Sex Torts"

BY: DEANA A. POLLARD
Texas Southern University
Thurgood Marshall School of Law

Document: Available from the SSRN Electronic Paper Collection:


Date: August 12, 2005

Contact: DEANA A. POLLARD
Email: Mailto:professorpollard@houston.rr.com
Postal: Texas Southern University
Thurgood Marshall School of Law
3100 Cleburne Street
Houston, TX 77004 UNITED STATES

ABSTRACT:
America has a serious sexual problem. Sexual disease transmission rates are the highest in the industrialized world, the annual health care costs approach 20 billion, and, more generally, many Americans have an attitude toward sex and sexual partners that is not bounded by civility or honesty. Although tort law fairly heavily regulated dishonorable sexual conduct in the early 20th century, through claims such as seduction, most sex tort claims now known as "heartbalm" torts were eviscerated during the 20th century, and sexual conduct today is almost completely deregulated. Currently, a tort claim may lie for sexual disease transmission, but the analysis employed is inefficient and unpredictable, and therefore lacks deterrent effect. Most courts have denied altogether tort claims grounded in sexual deceit or manipulation in the absence of physical injury.

This Article argues that current sex tort jurisprudence has contributed to the sexual attitude of Americans, and resultant sexual disease epidemic. Tort law could more effectively deter sexually undesirable conduct and more efficiently provide compensation to victims of sexual disease and sexual battery.
This Article suggests that transmitting a sexual disease to another person should be a strict liability tort, and sexual battery cases should be analyzed by reference to the true nature of the harm - autonomy infringement. The sex tort analysis offered in this Article is grounded in fundamental tort doctrine, an economic analysis of law, a behavioral law analysis, and the expressive, norm-regulating function of law.
The suggested sex torts would deter socially undesirable sexual behavior more effectively than current sex tort jurisprudence.

is the second book in O.E. Rolvaag's trilogy of Norwegian immigrants on the Great Plains. We read the first, Giants in the Earth, for the frontier conference I directed last week. (Warning: plot spoilers ahead).

Religion plays a major role in the books, and I was particularly struck by this passage from the second novel. At the end of the first book, the hero, Per Hansa, sets out in a storm to fetch a minister for his dying friend, Hans Olsa. He is goaded into doing it by his wife, Beret Holm. Per Hansa dies in the storm.

In this passage, Beret is being counsled by the traveling minister. Beret confesses to him her guilt over sending Per Hansa to his death, but justifies her behavior because of Hans Olsa's desperate need to confess his sins before dying. After she finishes telling her version of events to the minister, he responds

You have permitted a great sin to blind your sight; you have forgotten that is God who causes all life to flower and who has put both good and evil into the hearts of men. I don't think I have known two better men than your husband and the friend he gave his life for. It is hardly possible that God didn't find them good enough for a place of honor in His heaven, no - hardly! . . . From what your neighbor tells me it is altogether likely that your husband would have undertaken the trip even though nothing had come up between you and him, of that I think I can assure you!
Again the minister was lost in thought; it was a long time before he spoke. When he did his words sounded very strange to Beret:
"No, your worst sin does not consist in what you did to your husband that day; rather it lies in your discontent with God's special creatures, with your fellow men. For that reason you can experience no real happiness. . . . That is a grievous sin, Beret Holm!
The minister got up and paced back and forth. Beret sat looking into what he had said, trying to understand the meaning of it. . . . He can hardly believe it himself, a man so well versed in God's Word. But it is kind of him to speak so well of Hans Olsa and Per Hansa!
At length, coming over to her and standing rigght in front of her, he said quietly:
"I'm tired now, and I'd like to go to bed. But before I leave, I want to say this to you, Beret Holm: It is you who must carry on the great work which your husband has begun out here--it is yours to do with as you will. But one thing you must keep in mind--if you are to prosper and all is to go well with you, you must learn to find the good in your fellow man. Remember that God created him, Satan did not do that job!"

Here. The market is a wonderous thing.