At the height of the #MeToo era,1 not a month seemed to pass without tell of bad behavior by a titan of American government, media, or entertainment. The resulting public thirst for contrition gave rise to a very specific oeuvre of male apology.
“I misread things in the moment,” stated one entertainer after learning that a sexual partner had sobbed in her Uber home after their night together.2 I’ve had “encounters” where I was sort of “navigating and not knowing,” observed another man who learned that his exploration of a female colleague’s breast while she was hosting a television segment had been unwelcome.3 “I [have] learned…that when you have power over another person, asking them…isn’t a question. It’s a predicament,” said a third, who had undressed in front of fellow professionals in the workplace.4 Something is going awry in these encounters, where men attuned to their own desires simply do not register that their counterpart is having a different experience, but “learn” the female perspective after the fact. Modern law lacks useful tools to assess this disconnect, and in A Negligence Claim for Rape, W. Jonathan Cardi and Martha Chamallas give us one. (Pp. 3-4.)
Cardi and Chamallas make two significant contributions to the legal conversation about sexual oppression. First, they persuasively argue that negligence claims may be more responsive than criminal law to behavior colloquially known as acquaintance rape.5 Second, they suggest a role for negligence in “resetting…cultural attitudes” around sexual intercourse. (P. 43.)
Cardi and Chamallas begin by demonstrating why a pivot from criminal law to tort may facilitate sexual dignity for those who lack physical and social strength–paradigmatically (but not exclusively) women. Studies estimate that 1 in 5 women will be raped during their lifetime, but only a fraction of those women will report the incident to law enforcement. (Pp. 3-4.) Further, only a sliver of those reports will culminate in a criminal indictment and conviction. (Id.)
Cardi and Chamallas then turn to tort’s comparative ability to vindicate these claims. They acknowledge that the conventional claims of battery, assault, and false imprisonment often fall short. (Pp. 5-6.) Why? In these torts, defendants may escape liability if they can prove plaintiff consent, (Id.) and the authors demonstrate how poorly modern consent doctrine functions to isolate the dynamics that make a sexual experience antagonistic from those that make it reciprocal. For example, a defendant is in the clear if he can persuade the jury that he reasonably believed the plaintiff consented to sexual touch, even if the jury credits the plaintiff’s testimony that she did not, in fact, welcome it. As the authors point out, even when “a plaintiff is so drunk that she lacks the capacity to make decisions[,]” the defendant bears no liability for using her body for his sexual gratification if she “does not act in a way that would cause a reasonable person to believe that she is incapacitated.” (Pp. 15-16; emphasis added.)
Easy access to consent defenses is just one reason for Cardi and Chamallas’s dissatisfaction with intentional tort claims for sexual injury. Intentional tort judgments are typically not covered by liability insurance, making them economically infeasible for lawyers operating on contingency fees, and thus underutilized as a path to compensation. (P. 25.)
The authors next explore an unconventional approach to tort claims of sexual oppression: negligence. (P. 18.) They contend that in what they call “focal cases,” where the defendant does not set out to exploit a sexual partner, he may still commit an interpersonal wrong calling for a remedy. This wrong lies in the “unreasonable creation of circumstances that run the risk of undermining plaintiff agency” or sexual penetration of the plaintiff “despite the existence of an unreasonable risk that the plaintiff ha[s] not…consented.” (P. 21.) In these cases, the defendant’s indifference to the impact of his own power or to indications of his partner’s unwillingness is a dereliction of care that makes negligence “a good conceptual fit.” (Id.)
Negligence is also a pragmatically appealing option, they contend, because it sidesteps the doctrines that complicate intentional tort claims for sexual oppression.6 For example, consent is not squarely at issue in negligence as it is in battery or assault. Of course, defendants could argue that a plaintiff was comparatively negligent in contributing to the defendant’s belief that desire was mutual. However, they suggest the lack of established caselaw on the issue (P. 35) may give courts latitude to “eliminate (or sharply curtail[]) the defense in these situations.” (P. 37.) Doing so would produce plaintiff remedies, they claim, and simultaneously offset the victim-blaming dynamics of the consent defense in intentional rape claims. (Id.)
Cardi and Chamallas predict several other functional advantages to negligence claims for rape. These include opening the door to insurance coverage for injury awards, lengthening the statute of limitations to file complaints, and providing a legal mechanism to condemn the defendant’s behavior without applying to him the stigmatizing label “rapist.” (Pp. 24-26.) They anticipate judicial objections that undesired sexual penetration causes only emotional injury typically outside the reach of negligence, and respond with persuasive scientific and psychological literature that supports treating the injury as physical.
If the authors’ only goal were to find an existing cause of action capable of remedying individual plaintiff injuries in focal cases, their success would be essentially complete. They make a convincing case that defendants should be held accountable when they place their own interest in sexual gratification above the plaintiff’s interest in sexual self-determination. They show that this kind of interpersonal wrong is plausibly described as negligence within tort doctrine. And they demonstrate why negligence may address this wrong more effectively than intentional tort or criminal law.
But Cardi and Chamallas seem interested in using sexual negligence claims towards broader cultural ends. For example, they critique the Restatement (Third) of Torts for continuing to validate the defendant’s perception of a sexual encounter in intentional tort cases. (P. 45.) They urge courts adjudicating negligence claims for rape to rethink that baseline by adopting a “third-party perspective” to evaluate whether a sexual actor was reasonably careful – explicitly rejecting the self-referential point of view that anchors the male apology oeuvre. (P. 46.) Moreover, they situate their proposal in the “social context” of #MeToo and the Title IX affirmative consent movement, (Pp. 43-44) both of which seek to de-normalize the trope that men are sexual subjects and women, sexual objects.7 These passages of their article can be understood to imply that a jurisprudence of negligent sexual behavior could modernize the culture of intimacy.
In some of the same passages, however, Cardi and Chamallas describe courts in negligence cases as assessing the behavior of sexual “initiators” and the sexual “targets” who “comply” in response to aggression. (Pp. 46-47.) This terminology is jarring when used in a negligence context – we do not typically refer to negligent doctors, for example, as “initiating” malpractice against “targets.” The dissonance is more than linguistic. Consciously or not, the authors’ word choice perpetuates the idea that sex is a zero-sum contest in which men are hunters and women are prey, despite their apparent disavowal of that model elsewhere in the piece. (P. 30, deploring the zero-sum portrayal of rape remedies as boons to women and losses to men.)
This leaves the reader wondering what to make of the authors’ expressed interest in “resetting…cultural attitudes.” (P. 43.) They seem to angle for a modest recalibration of the legal entitlements to each gender in the sexual realm, most notably shifting from a male-centered to a neutral point of view about the reasonableness of sexual tactics. Still, this change, and the language they use to describe it, retains the cultural depiction of penetration as a prize captured by one partner at the expense of another. Updating social thought about what constitutes a “fair” transfer of sexual access is progress, but is it the progress our moment demands? The authors dismiss as “radically relativistic” the view that “each party’s subjective perception of their [sexual] actions is equally ‘valid,’” (P. 37) but why? Most individuals do assume their sexual perceptions are valid, and that truth is what seems to necessitate a legal duty to bring those perceptions into the open as a basis for modifying behavior in real time. Emphasizing the duty to create an intersubjective communicative space could change the cultural narrative of sex from one of veiled negotiation over female concession to one of reciprocal feeling and desire.8 Of course, that cultural reset may be outside the scope of an already ambitious project.
Cardi and Chamallas have tasked themselves with finding a legal tool capable of responding to underdeterrence in the area of sexual oppression. They have delved into tort doctrine and emerged with a creative and credible option. That accomplishment compels admiration, even as it invites further discussion.
- See, e.g., Maya Salam, One Year After #MeToo, Examining a Collective Awakening, N.Y. Times Gender Letter (Oct. 5, 2018).
- See, e.g., All Things Considered, The Fine Line Between a Bad Date and Sexual Assault: Two Views on Aziz Ansari, NPR (Jan. 16, 2018).
- See, e.g., Matt Miller, Stephen Colbert Pushes Ben Affleck on Sexual Harassment in a Tense Late Show Interview, Esquire (Nov. 17, 2017).
- See, e.g., Louis C.K. Responds: These Stories Are True, N.Y. Times (Nov. 10, 2017). To be clear, none of these reported situations involved intercourse or claims of rape.
- Although their titular concern is “rape,” Cardi and Chamallas actually offer a more nuanced definition of the behavior and injury they are addressing: “sexual assault effected without use of physical force beyond the act of sexual penetration.” (P. 8.)
- Notably, the authors would not limit plaintiffs to either negligence or intentional tort, but would permit them to bring both claims, arguing in the alternative. (P. 46.)
- See, e.g., Isaac Chotiner, Martha Nussbaum on #MeToo, The New Yorker (June 1, 2021).
- Lawrence E. Hedges, Sexual Pleasure in Light of Intersubjectivity: Neuroscience, Infant Research, Relational Psychoanalysis, and Recognition Theory, 18 Int’l Body Psychotherapy J. 146, 153 (2018) (describing sex as a “reciprocal affect attunement process”).
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