May 17, 2005

I Can Make Anything Boring

by PG

Like the judicial opinion that clarified what "'hos" were by citing Ludacris, the decision in Moe v. Doe has gone beyond bloggers' notice to that of the general legal public (at least as signified by its appearance in my classmates AIM away messages). The normal human curiosity about a suit for penile fracture incurred during sexual activity aside, the case had two other interesting aspects for me.

First, I wondered what the rules for getting a case to be named pseudonymously were. Presumably not all cases potentially embarrassing to the plaintiff and particularly having to do with sexual matters are automatically granted Doe/ Moe status. While Norma McCorvey became Roe (and then not), Michael Hardwick had his name on a civil suit that identified him as a practicing homosexual. However, I'd be surprised if anyone who requested anonymity was always granted it regardless of the situation, as the public probably has some interest in knowing who is using the resources of our court system, and the people involved in cases an interest in knowing who the other parties are.

Second, one rationale against using a negligence standard was rejected by the lower court, and this rejection implicitly maintained by the Appeals Court's ignoring it, but I thought it might deserve more consideration than was given.

In granting the defendant's motion for summary judgment, the Superior Court judge concluded that the defendant's interest in privacy created a policy rationale sufficient to elevate the standard of care in this case to recklessness, rather than ordinary negligence. The Superior Court judge referenced the line of cases beginning with Gauvin v. Clark, 404 Mass. 450 (1989), which apply a recklessness standard to sports activities, rather than a negligence standard, because of the likelihood that a negligence standard would chill athletic competition. Although the judge found the Gauvin "chilling" rationale to be inapplicable to the present case, he determined that the alternative privacy rationale was sufficient to elevate the standard of care to recklessness.
I'm guessing that the state has an interest in encouraging athletic competition in order to train its people for warfare -- "the Battle of Waterloo was won on the playing fields of Eton" -- and keep them from getting out of shape.

In contrast, the only sexual activity the state has an interest in encouraging is that between married people, which is likely to further cement the bonds of matrimony and prevent adultery and thus the dissolution of the marital bond that provides mutual support so the state doesn't have to. (I don't hold with the notion that the state has an interest in encouraging heterosexual sex for the sake of procreation, as then we wouldn't be worried about out-of-wedlock births; probably the U.S. is having quite as many babies as we need.)

This is only a guess, however, and one that assumes negligence in marital sexual activity wouldn't be tortious even if negligence in non-marital sex were. On the other hand, unlike a dating relationship, marriage does entail a legally defined duty or recognized standard of conduct, so a duty to avoid injury to one's spouse during sex may be found where none was for a boyfriend.

Moreover, the term "privacy" here seems to be used in a sense quite different from that in some constitutional jurisprudence. For example, the unconstitutionality of banning abortion rests doctrinally on the right to privacy, but the act of getting an abortion is not "private" in the sense that it would merit a lower standard for medical practice than any other procedure. A negligent abortion provider is no less liable for damages than a negligent liposuctioner, though the patient has a right to privacy involved in the former but not the latter. (At least, that's my understanding; I don't think that a state that wished to ban liposuction due to the imbalance of risks and benefits would be prohibited from doing so by the Constitution.)

May 17, 2005 05:29 PM | TrackBack

Imagine what could have happened if John Doe had taken the male pill (Viagra, Cialis, Levitra) and "suffered" the side effect of a four hour tour.

Posted by: Shag from Brookline at May 18, 2005 06:53 AM
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