Feminist Legal Theory and Tort Law
42 Pages Posted: 18 Jun 2018
Date Written: June 18, 2018
Tort law in the US has failed to provide adequate protection against gender-related harms that disproportionately affect women. Because of the imposition of doctrinal and other restrictions on recovery, there is no reliable means of tort compensation for victims of domestic violence, rape and sexual assault. Only a small number of intentional tort cases have been brought directly against offenders, mainly leaving the criminal law to deal the problem. Although more negligence suits have been brought against institutional defendants for failure to prevent sexual violence, the developing law has not yet had an appreciable effect on cases of domestic violence or acquaintance rape. In the realm of reproductive harms affecting pregnancy, childbirth, and fertility, tort protection has also been precarious, with claims of women and other plaintiffs relegated to the disfavored tort of negligent infliction of emotional distress. The chapter connects these recent developments to feminist theory.
Note: This is a draft chapter. The final version will be available in Research Handbook on Feminist Jurisprudence, edited by Robin West & Cynthia Bowman, forthcoming 2018, Edward Elgar Publishing Ltd.
Keywords: tort, domestic violence, rape, sexual assault, pregnancy, childbirth
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