56 Pages Posted: 26 Aug 2005 Last revised: 9 Feb 2013
Date Written: August 12, 2005
America has a serious sexual problem. Sexual disease transmission rates are the highest in the industrialized world, the annual health care costs approach 20 billion, and, more generally, many Americans have an attitude toward sex and sexual partners that is not bounded by civility or honesty. Although tort law fairly heavily regulated dishonorable sexual conduct in the early 20th century, through claims such as seduction, most sex tort claims now known as "heartbalm" torts were eviscerated during the 20th century, and sexual conduct today is almost completely deregulated. Currently, a tort claim may lie for sexual disease transmission, but the analysis employed is inefficient and unpredictable, and therefore lacks deterrent effect. Most courts have denied altogether tort claims grounded in sexual deceit or manipulation in the absence of physical injury.
This Article argues that current sex tort jurisprudence has contributed to the sexual attitude of Americans, and resultant sexual disease epidemic. Tort law could more effectively deter sexually undesirable conduct and more efficiently provide compensation to victims of sexual disease and sexual battery. This Article suggests that transmitting a sexual disease to another person should be a strict liability tort, and sexual battery cases should be analyzed by reference to the true nature of the harm - autonomy infringement. The sex tort analysis offered in this Article is grounded in fundamental tort doctrine, an economic analysis of law, a behavioral law analysis, and the expressive, norm-regulating function of law. The suggested sex torts would deter socially undesirable sexual behavior more effectively than current sex tort jurisprudence.
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