Impaired, in Pairs

Abstract

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional tort in which a predator strategically targets a plaintiff whose autonomy will be negated. The modern reality – that many, if not most, rapes take place between drunken acquaintances whose cognition and judgment have been dulled – is underaccounted for in modern tort doctrine. This Article urges a new look at tort’s categorization of wrongdoing in non-collaborative sex. The reflexive assumption that sexual wronging is intentional has placed the weight of sexual assault adjudication on the question of female consent. And while tort doctrine appears willing to acknowledge that sex often goes wrong when drugs and alcohol are involved, it takes a curiously gendered approach to the role that impairment plays. How so? The Restatement of Tort fixates on holding women responsible when they drunkenly, but mistakenly, signal consent. But it does not consider whether to hold men responsible when they drunkenly, but mistakenly, conclude they have consent. When both parties are cognitively dulled in this fashion, it may be doctrinally unprincipled to say that either has the capacity to intend their actions. If so, the Article suggests, physical oppression associated with non-collaborative, intoxicated, sex might be better placed in the tort categories of negligence or strict liability, where cognitive purpose is not the sine qua non of wrongdoing.

Keywords: tort, tort theory, private law theory, legal theory, consent, sexual assault, strict liability, negligence, rape, intoxication, impairment