Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.
Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Further, lack of consent is also an essential element of battery. Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.
The district court concluded that Thomas Neal’s failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal’s consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court’s reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the “consented to” act would never occur.
Mary Neal’s affidavit states that: “[I]f the undersigned had realized that her husband was having sexual intercourse with counter-defendant LaGasse, the undersigned would not have consented to sexual intercourse with counterdefendant Neal and to do so would have been offensive.” The district court opined that because the act was not actually offensive at the time it occurred, her later statements that it would have been offensive were ineffective. This reasoning ignores the possibility that Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it, and that she did not become aware of the offensiveness until well after the act had occurred. Mary Neal’s affidavit at least raises a genuine issue of material fact as to whether there was indeed consent to the alleged act of battery.
Note that the reasoning isn’t limited to married couples, but would also apply to other lovers who had an understanding of fidelity. Nor would it just apply to cheating on a relationship in which fidelity was understood: It could also apply to other situations where plaintiff argues that he or she wouldn’t have consented to sex with defendant had he or she known certain things about the defendant — e.g., that the defendant was already married, or that the defendant had been a prostitute at some point in the past, or that the defendant had lied about something in order to get plaintiff into bed, and so on. It’s a pretty broad theory that the Idaho Supreme Court adopted.
Now I should say that the court’s theory is not illogical: The principle that consent procured by lies, or by failure to disclosure something that plaintiff and a reasonable person would have likely found material, is not a valid consent is well-established in other contexts. The main objection, I think, is pragmatic: The theory would turn a vast range of relationship misconduct into a basis for litigation, with lots of opportunity for fraudulent claims. And the question is how to weigh this pragmatic objection with the argument that consent procured by deceit or nondisclosure of highly material facts is not consent (especially in a civil case).
The case is apparently unusual, at least outside cases of lies about sexually transmitted disease, or intentional concealment of such a disease. For the one case I know of involving a similar approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was infertile, see Barbara A. v. John G. (Cal. Ct. App. 1983) (2-to-1), disagreed with by Perry v. Atkinson (Cal. Ct. App. 1987). For a different approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was fertile, see Conley v. Romeri (Mass. App. Ct. 2004):
There is no indication that the defendant’s statement in July, 1996, after several dates, that he had been told by a fortune teller that he would have six children was made with the intent to induce the plaintiff to have sexual intercourse. At that stage of their relationship, such a statement may be seen only as an inducement to continue dating. There were no discussions between the parties about having children together, or of marriage. Moreover, the plaintiff’s feeling that she wasted time with the defendant because her biological clock was running does not constitute a battery. We conclude, as a matter of law, that the plaintiff’s consent was not vitiated, and that summary judgment properly was allowed for the defendant.