Broken Eros: Suing For `Sexual Fraud'

Jul 4, 1993

Ellen Joan Pollock

The Wall Street Journal

Sexual promises, like political ones, have a tendency to be broken.

Victims of bedroom lies and false promises have traditionally accepted the consequences. But increasingly, they are bringing cases to court that involve sexually transmitted diseases, birth-control use, sterility and even sexual rejection.

The suits often face daunting obstacles because no laws directly regulate the intimate declarations of couples, even when one of them is lying. Plaintiffs' lawyers typically try to translate principles from commercial law or personal-injury litigation into the sexual arena, but these efforts meet with only mixed success. Sometimes judges allow such lawsuits based on general allegations of misrepresentation, negligence, fraud, battery or deceit; other times, they don't.

A new legal theory

Now, however, a law professor from Northwestern University School of Law is recommending that judges adopt a separate new legal theory for sexual-deception lawsuits that acknowledges their rightful place in the court system. The proposed legal action would be for "sexual fraud," which the professor, Jane E. Larson, defines as "an act of intentional, harmful misrepresentation made for the purpose of gaining another's consent to sexual relations."

Professor Larson, who spelled out her theory in a recent issue of Columbia University's law review, says the law as it stands is inadequate because it permits "more predatory behavior in the sexual

marketplace than we do in the business world. . . . You can do things to get people to consent to sex that you cannot do to get their money."

A legal argument specifically tailored to allegations of sexual deception would make it simpler for victims to bring lawsuits, broaden the kinds of disputes they can take to court and make it easier for victims to collect damages for emotional harm, she says.

Larson anticipates that her article may encourage lawyers to start making claims of sexual fraud in sexual-deception lawsuits. Then, she hopes, the ritual of creating new law can begin: Some judge will cite her article as authority for adopting the theory. Then other judges will cite the first judge's decision as precedent, and pretty soon any new court that considers the issue will have pages of citations to verify that sexual fraud has become part of the judge-made, or "common," law of the land.

The process Larson seeks could take years, however, and could be derailed at any time if appeals courts reject the theory. Meanwhile, lawyers are relying on legal claims that often seem more appropriate in savings-and-loan or real-estate cases than in disputes over whether lovers have lied to each other.

Lawsuits alleging that a sex partner lied about a sexually transmitted disease - and thus engaged in negligent or fraudulent behavior - are the most common of the cases. They are also the most successful of the sexual-deceit suits, in part because some state appeals courts, including California's, have given them the green light. In court judgments and more frequent out-of-court settlements, defendants have had to pay amounts ranging from $15,000 to $450,000, according to Barry A. Pollack, a Los Angeles lawyer who handled one of the first successful cases involving genital herpes in California.

STDs exempted

Because of the increase in cases over herpes, Pollack says, insurers often exempt sexually transmitted diseases from coverage in homeowners' and other policies. That is why many targets of these suits turn out to be entertainers, sports figures and other well-off defendants who can afford to settle for hefty amounts, he says. Some of these cases are filed "for social justice" and some "so attorneys can make a living," Pollack adds.

Some lawyers point to the success of such cases to argue that recognition of a distinct sexual-fraud claim is unnecessary. But Larson counters that the new theory would cover a wider range of wrongs. For example, she says, sexual-fraud suits could be brought by women who find out their sexual partner lied about being unmarried. And the claim also could be made by men who have slept with women who lied about using birth control. In the absence of a recognized sex-fraud legal claim, these cases involving birth control have been disallowed in New York, New Jersey and California.

Whether intimate matters belong in the courts at all remains in dispute, however. In one case, Barbara A., as she was referred to in court papers, sued her lawyer after they had an affair and she became pregnant. In her suit, she said that she had specifically told the defendant, John G., that she would not have sex without birth control because she did not want to become pregnant. He allegedly led her to believe that he was sterile. Barbara A. developed an ectopic, or tubal, pregnancy, had surgery and was rendered sterile, according to court documents.

A lower court threw out the case, but an appeals court reinstated it. The appellate court ruled that although the "right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party."

`Courts out of the bedroom'

But in a dissenting opinion, one judge argued that that court's decision ran counter to a 1939 California law prohibiting so-called seduction lawsuits, in which a woman would claim that her virtue had been robbed by a man who had deceitfully lured her into sexual relations. Such cases were common in the Victorian era but were outlawed by some states as social mores changed. "The courts should stay out of the bedroom," the dissenting judge in the Barbara A. case concluded. (The parties settled the case out of court.)

Some other judges have agreed with that sentiment. In a case decided by a California appeals court in 1987, a woman sued a married man with whom she had had an affair; she said he had convinced her to have an abortion by promising her he would impregnate her again the following year through sexual intercourse or artificial insemination. He then broke that promise. The parties settled an emotional-distress claim, but an appeals court upheld a lower-court decision throwing out the rest of the case.

The court ruled that although a misrepresentation may have occurred, the parties' "procreative decisions were so intensely private that we decline to intervene." To do otherwise, the court concluded, would put courts into the position of setting "standards for the making and performing of such promises." Repairing the harm

Many lawyers share that court's worries. They think that it is not always the courts' job to repair the harm done when lovers lie to each other. "People want a solution for every wrong," says Helene Brezinsky, a New York matrimonial lawyer. "Frankly, I think people look to the courts to solve problems the courts can't solve."

Underlying such doubts is the further concern of some lawyers that many suits on intimate matters are, ultimately, frivolous. Some point to a case decided in April in which a California man, Ronald Askew, sued his former wife for fraud because she had not told him before their marriage that she was not sexually attracted to him. A jury in Santa Ana awarded him $242,000. A judge subsequently ordered Bonnette Askew to transfer real-estate assets valued at about that amount to her ex-husband, and she asked for a new trial. A decision on her request is pending.

Richard W. Millar Jr., who represented Askew, says that Larson's sexual-fraud proposal is "in line in theory with what happened in this case." He feels that acceptance of the sexual-fraud claim would just lead to more litigation and would be "a lawyer's dream."