The Life of Negligent Infliction of Emotional Distress and the Death of Gotcha Sexuality: A Feminist Judgment in Boyles V. Kerr

Abstract

This paper is a feminist judgment in Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). The case was brought by a teenager filmed unawares by a casual sex partner, and is among the first legal reactions to so-called revenge porn. The resulting video was shown at local fraternity parties and became the subject of statewide gossip in Texas collegiate circles. In the original case, the Texas Supreme Court vitiated the negligent infliction of emotional distress action it had approved just years earlier to vindicate a mother’s claim of anguish after a stillborn child was interred without her knowledge. Using feminist methodology, this paper rewrites the opinion to retain the NIED cause of action, which has historically been a boon to women. It clarifies that compensation for emotional distress is not contingent on the plaintiff’s sustaining injury that conforms to traditional notions of female virtue and nurturing. It goes on to identify sexual relationships as sufficiently “special” and foreseeably emotional to justify liability for those who act unreasonably within them. It defers to a jury determination that secretly videotaping a partner is unreasonable within such a relationship. Finally, it condones the plaintiff’s quest for money damages by framing the behavior as negligent and therefore covered by homeowners’ insurance. The case was decided in 1993, the rewrite was published in the Feminist Judgments series, and it is posted online for Women’s History Month 2024. As gotcha sexuality moves from analog tactics like VCR revenge pornography in the twentieth century to digital tactics like AI deepfake pornography in the twenty-first, legal resistance to it must strive for the same agility.

Keywords: negligent infliction of emotional distress, NIED, tort, tort theory, legal theory, feminism, feminist judgments, non-consensual pornography, deep fake pornography, remedies