A Negligence Claim for Rape

48 Pages Posted: 25 Feb 2022

See all articles by W. Jonathan Cardi

W. Jonathan Cardi

Wake Forest University - School of Law

Martha Chamallas

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: February 20, 2022

Abstract

Tort law has failed to respond to the intolerably high incidence of rape and sexual assault in the U.S. By any measure, there is glaring disparity between the paltry number of tort claims brought by rape victims and the vast number of sexual assaults committed each year. Among the multiple reasons for the underutilization of tort law is the inadequacy of traditional doctrinal frameworks for litigating such cases, particularly the assumption that a rape victim must bring an intentional tort claim to recover against an offender. The labyrinthine doctrine of consent that looms large in intentional tort cases has deterred plaintiffs from suing and has made it difficult for plaintiffs to prevail, even when a defendant’s sexual conduct is undesired and harmful.

Our solution is to allow tort plaintiffs the option of bringing a negligence claim against the offender, centering the litigation on the unreasonableness of the defendant’s conduct rather than the consent of the plaintiff. Allowing a negligence claim for rape responds to the countless date and acquaintance rape cases in which the defendant’s unreasonable conduct has undermined the plaintiff’s ability to consent freely – creating a risk of coercion – and to those cases in which a defendant has placed his interests above the plaintiff’s by taking a risk that the plaintiff has not in fact consented. The option of negligence will allow juries to evaluate contested cases in a straightforward fashion and will provide a more secure route to adequate compensation, particularly if courts determine that such negligence claims are not subject to the “intentional acts” exclusion in insurance contracts.

Courts will face a variety of doctrinal questions in litigating such negligence-based rape claims, including the proper categorization of the injury as physical versus emotional harm and the availability of the contributory/comparative negligence defense. Because affording such a negligence option would not preclude plaintiffs from also asserting intentional tort claims, it is important that courts not view such claims as mutually exclusive and that plaintiffs be given the opportunity to argue in the alternative.

Keywords: torts, negligence, rape, sexual assault, battery, #metoo, consent, affirmative consent

Suggested Citation

Cardi, W. Jonathan and Chamallas, Martha, A Negligence Claim for Rape (February 20, 2022). Texas Law Review, Vol. 101, 2022, Ohio State Legal Studies Research Paper No. 691, Available at SSRN: https://ssrn.com/abstract=4039261 or http://dx.doi.org/10.2139/ssrn.4039261

W. Jonathan Cardi (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

Martha Chamallas

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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