Patterico's Pontifications

6/29/2015

But Of Course: Legally Protecting The “Unusually Sensitive”

Filed under: General — Dana @ 6:32 am

[guest post by Dana]

Further and onward we go into this brave new world. And though we may momentarily stumble as we try to keep our balance under the sweeping wave of progress, we have not arrived here with disbelief or shock, but rather with a hard, savvy understanding of precisely what is happening and why it is happening. Because we have not been caught off guard or unaware. We have all along been watching the shift in the cultural and political landscape and pushing back in resistance. This especially as we have always known where that long trail of bread crumbs, the size of red flags which mark the leftward path of our nation, would lead. Admittedly, the opposition’s tactics may be surprising but the outcome certainly isn’t. So here we are. We have entered the mothballing season of the “reasonable man”.

With that, the legal elite continue apace in this mad season of progress:

A group of judges, attorneys and law professors recently voted to make tapping the shoulder of a Muslim woman to ask for directions potentially punishable in a U.S. court of law. This group, the American Law Institute, is an elite private organization that includes the justices of the U.S. Supreme Court, the chief judges of the U.S. Courts of Appeal and the highest state courts, most law school deans, some law professors and private attorneys.

Here is the background. The American Law Institute periodically issues “restatements” that attempt to codify the common law—but also shift the law in the direction the institute wants it to go. In 1964, for example, the institute’s Restatement of Torts established the liability of sellers to consumers for defective products regardless of fault. At the time only 16 states had taken this position. Now it is the law everywhere.

The Arizona Supreme Court has ruled that American Law Institute restatements are law in all subsequent decisions when there is no state statute to the contrary. The U.S. Supreme Court on average cites the institute at least once a month.

On May 20 the American Law Institute approved, by a very close vote, significant changes to the section of its new Restatement of Torts dealing with assault and battery. The changes will have far-reaching, and extremely troubling, social and legal ramifications—including favoring some religious beliefs over others.

The institute’s restatement defines the tort of battery as any contact with another person that “offends a reasonable sense of personal dignity” or—the new addition—contact that is highly offensive to another person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.”

To be a battery, the contact or touching must be offensive. That’s to exclude the occasional bumps we experience walking through a crowd. And the law always measured what constituted an offense based on the views of a reasonable person. That way a judge can dismiss a frivolous claim. However, the American Law Institute now proposes that personal contact is a tort if the defendant knows that it will be offensive to someone who is “unusually sensitive.”

The writer explains the danger this presents:

[S]uppose a patient tells a hospital, “I don’t want any Jewish doctors or nurses to touch me.” An earlier draft of the institute’s restatement said, “if the patient had demanded that she not be touched by a nurse or doctor of a particular race or religion, the hospital and medical staff have no obligation to respect that preference” because it violates “public policy.” But the final accepted draft eliminates the words, “or religion.”

So if a hospital does not obey a religious bigot’s demand, it risks a lawsuit, jury trial and punitive damages. And insurance does not often cover a battery. Thus if the trial takes place in a community with a significant Muslim population, the hospital will be more likely to settle—an outcome that will encourage religious bigotry.

Further, how this “restatement” would favor one religion over the other:

Consider John Doe, waiting at a bus stop, who taps a woman wearing a Muslim veil on the shoulder to get her attention and ask for directions. The institute’s restatement suggests that Mr. Doe might be liable for committing battery. A jury might find that a reasonable person would know that males aren’t supposed to make bodily contact with females not in their family. But if the woman touches Mr. Doe, she’s not liable, because he follows a different religion or no religion at all.

As a result, the change would be enormous:

In North Carolina, an employee sued his supervisor for assault and battery because the supervisor, in his own office, smoked a cigar. There was no company rule against that, but the employee had warned the supervisor that he found cigar smoking “obnoxious.” A state court dismissed the case (McCracken v. Sloan, 1979) because the employee’s “mental distress” was not enough for assault and battery. The American Law Institute says: “This case would very likely result in liability today.”

A final warning:

No court ever has adopted the concept, as a widely used casebook put it, that an individual with an “abnormally acute sense of personal dignity” could make another liable for battery. Nor has the American Law Institute—until now.

–Dana

36 Responses to “But Of Course: Legally Protecting The “Unusually Sensitive””

  1. Hello.

    Dana (86e864)

  2. “For all of their profound differences, the Islamic State and the Left have one purpose in common: They want to wipe out history so they can write it anew to support their utopias, the perfected societies of their inhuman fantasies.

    The Islamic State destroys wondrous monuments to prevent “pagan worship,” to purify Islam and restore the caliphate to a state of perfection it never possessed. Aiming at a less puritanical, if equally rule-bound utopia, the American Left has all but destroyed the teaching of history in our schools, scorning facts in favor of paternalistic condescension toward minorities.

    Thus it’s not enough to take the reasonable step of removing the Confederate Battle Flag from state and local government properties. That flag must be driven from the marketplace, from all public spaces and, at last, from the personal space, since it might be “hurtful,” even if hung in a basement. It’s admirable to celebrate the Black Panthers, but not for a struggling working man to honor a Civil War ancestor. In this case, brothers and sisters, bigotry ain’t a monopoly.

    Islamist State sledgehammers smash off the faces of classical-era statues. Our Left wants to remove Founding Fathers and others from our currency to replace them with minor figures that suit their agenda. Both actions are about mastering the past to control the future.

    (Might I suggest a compromise on the currency issue? The Left can put anyone it wants on the 20-dollar bill, if our high-school textbooks can teach that the Democratic Party was the party of slavery, the KKK, Jim Crow and segregation into the 1960s – and remains the party obstructing quality education in inner cities.)”

    Col. Ralph Peters

    Colonel Haiku (2601c0)

  3. Wow.

    The rule of law is designed to preserve our freedoms, but now it’s being used to subjugate us.

    DRJ (1dff03)

  4. Further and onward we go into this brave new world.

    I don’t know if you know how right you are:

    Two plus two equals five. A severed head plus “Allahu Akbar!” equals “Nothing to do with Islam.” Network screenings of Gone With The Wind plus Uncle Ben’s rice equals blatant incitement to mass murder. A nice chichi gay couple at 27 Elm Street and a firebreathing imam and his four child brides at 29 Elm Street equals the social harmony of a multiculti utopia.

    http://www.steynonline.com/7024/violent-extremistan-vs-the-dar-al-gay

    Exchanges established by the federal government are exchanges established by the state. Rachel Dolezal is black. Iran will honor an agreement not to develop nuclear weapons. ISIS is a JV team. There’s an epidemic of sexual assaults on college campuses. Michael Brown had his hands up and pleaded “don’t shoot.” Caitlyn Jenner is a woman. Obamacare is working. 2+2 doesn’t necessarily equal 4. The polar ice caps are disappearing. The IRS is doing a decent job. The border is secure.We’ve ended two wars responsibly. Hillary Clinton turned over all work-related e-mails. An $18,200,000,000,000 debt can grow without mention. People who burn down buildings and overturn cars aren’t thugs. The OPM hack is manageable. We’ve reset relations with Russia. Entitlement reform can be kicked down the road. We’re more respected around the world.

    http://www.nationalreview.com/corner/420363/reality-now-discretionary-peter-kirsanow?target=author&tid=1871

    Walter Cronanty (f48cd5)

  5. The Arizona Supreme Court has ruled that American Law Institute restatements are law in all subsequent decisions when there is no state statute to the contrary.

    The US Supreme Court recently overwhelmingly ruled (8 to 1, with only Clarence Thomas opposing) that an Islamic woman applying for a job at Abercrombie & Fitch, and who was wearing a head scarf that she claimed her would-be employer didn’t like and therefore made her a victim of discrimination at the job interview, had a right to sue the retailer. Scalia wrote that such claims of discrimination based on one’s religion were legitimate.

    Since I generally have faith in Scalia’s sense of appropriate justice and law, I wasn’t as alarmed by the ruling as I was at first glance. However, I think of the phrase “even a broken clock tells the correct time twice a day,” and there presumably is just the opposite of that.

    The American Law Institute sounds awfully similar to one of those obscure, self-appointed entities set up by states throughout the US whose mission is to guard against human rights violations. The type of entities that happily allow people to, for example, sue bakers for not catering to gay customers full of the rage of self-entitlement. Or symbolically just a skip and a hop away from the idea of entities set up by the United Nations sticking their noses into the affairs of Americans.

    Something stinks in Denmark, and that stench may be spreading all over the place.

    Mark (a11af2)

  6. i see i’m not the only moron here…

    😉

    redc1c4 (4db2c8)

  7. last night’s ONT which has both links in #4.

    redc1c4 (4db2c8)

  8. You’re absolutely right. The last three Supreme Court decisions, together with society as a whole, are very depressing. Steyn and Kirsanow said it better than I could.

    Walter Cronanty (f48cd5)

  9. A gentlemen tapping a strange lady on the shoulder is rude, as is a lady tapping a strange gentleman on the shoulder. One simply doesn’t. The proper way to draw their attention is by saying “Pardon me, ma’am (sir) ….”

    nk (dbc370)

  10. my lil fingers are itching to tap a muslim chick on the shoulder and say excuse me can you help me I’m lost I’m looking for the 911 memorial museum place can you please to help me

    happyfeet (7b1a9e)

  11. 9.A gentlemen tapping a strange lady on the shoulder is rude,…

    So are you agreeing that “rudeness” should now be an actionable tort, or are you merely playing Miss Manners?

    Walter Cronanty (f48cd5)

  12. tapping is very rape culture

    but sometimes you just gotta say eff it and get your tap on

    happyfeet (7b1a9e)

  13. 12.tapping is very rape culture

    but sometimes you just gotta say eff it and get your tap on

    Better wear rubber gloves so you don’t leave any dna.

    Walter Cronanty (f48cd5)

  14. That is why we teach not to tap on the shoulder but double-tap to center of mass, if he had done that this ridiculous case never would have happened.

    JNorth (5fe1bf)

  15. Who said anything about actionable tort? The man who does it should be called out, and the woman who does it should be shunned by other ladies as “no better than she should be”.

    nk (dbc370)

  16. There was no case, JNorth. This is just a hypothetical scenario. Also known as a strawman.

    nk (dbc370)

  17. 15.Who said anything about actionable tort?

    The ALI. That’s what the post is about. And it’s not a “strawman.” The ALI, as set forth in the post, is considered “the law” in most states.

    Walter Cronanty (f48cd5)

  18. Forcing the poor Muslim woman to go against her religious beliefs by being tapped on the shoulder is wrong. Its about as wrong as ohhhhh say forcing a Christian to bake a wedding cake for homosexuals! THE HORROR!

    Gil (febf10)

  19. Hush, Gil. You have expressed your contempt and hatred repeatedly. We really don’t need it repeated.

    JD (3b5483)

  20. shirley they can’t be serious, JD

    narciso (ee1f88)

  21. This is ridiculous paranoia. The key phrase is “and the actor knows that the contact will be highly offensive to the other“. Not “a reasonable person would know”, but “the actor knows”. If the plaintiff can’t prove that the defendant knew this, then there’s no battery. And if she can prove it, then it bloody well should be a battery.

    Rotunda’s complain that this produces asymmetrical results is meritless. Of course it does, because life is not symmetrical. It is generally lawful to enter someone’s property and walk up to their front door to knock on it, ring the bell, or leave a note or letter. But if one is on notice that the owner of a specific property does not give permission for such access, then to do so is trespass, even though that property owner remains free to have similar access to other people’s property.

    And yes, people do have the right to refuse treatment by a doctor who is not to their liking, for any reason or none, and any attempt by that doctor to treat them against their will is already a battery.

    Milhouse (a04cc3)

  22. This came up on my Facebook feed last week.
    http://m.washingtonexaminer.com/has-the-federal-government-ever-had-sex/article/2565963
    Touching on the shoulder would not be battery. It woukd be RAPE.

    Oh, note to Arizona legislature: time to declare the state supreme court rule about restatements no longer valid.

    kishnevi (294553)

  23. Mark@5
    The ALI was a highly respected organization in my student days, and the Restatements valuable and often used because they represented the current consensus of the law.

    That was 30 years ago. Apparently the ALI has been Leftized in recent years.

    Sort of as if the Mayo Clinic had been turned into a chiropractic center.

    kishnevi (93670d)

  24. We already have a legal system that it set up to deal with this: it’s called assault. We have standards – a “reasonably prudent person” that ensures that we are not subject to the whims of unusually sensitive people.

    I say this as a woman who really, really dislikes being touched by random strangers: what is the problem? Someone tapping me on the shoulder is different than sliding a hand up my skirt. Sheesh.

    bridget (248d93)

  25. Yes, we have a legal system, and the definitions of common law torts is part of that system, and so are the ALI’s restatements. This is precisely about the standard for assault and for battery, and what it should be when the defendant knew that the plaintiff was unusually sensitive, and strongly objected to his touch. It seems to me obvious and unobjectionable that someone who deliberately touched another, knowing full well about that person’s objection, should be liable for battery, even if an ordinary person would not object to that touch.

    Milhouse (a04cc3)

  26. No, kishinevi, this has nothing to do with the article you linked to. This is about the Restatement of Torts, not the model penal code. It’s about torts, not crimes. The model penal code has no force of law anywhere; it’s just a set of suggestions for legislatures.

    And no, even under the insane proposal discussed there, a touch on the shoulder would not be classed as rape, but merely as “criminal sexual contact”. Which is bad enough, but let’s not get carried away.

    Milhouse (a04cc3)

  27. First, this is obviously about money if its being treated as a tort and not a crime. Keep that in mind when evaluating its merit.

    Second, it’s a minor quibble but assault is not touching. Battery is touching, which is why the new definition is about battery.

    Third, the Restatement reportedly describes the tort as contact that is highly offensive to another person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.” This strikes me as an attempt to expand the eggshell skull rule to other torts, but in an inappropriate way since being “unusually sensitive” is an element of the offense itself. It’s also the next step in making victimhood a desirable quality instead of an unfortunate condition.

    Furthermore, an important issue will be the standard used to show what the actor “knows … will be highly offensive.” Will a court take judicial notice that all Muslim women are “highly offended” by being touched, or will each case be decided individually based on what the woman felt and the actor knew? Will everyone be required to “know” this is how Muslim women feel? What about my autistic son who hates to be touched — will people be required to “know” that some/many/all autistics don’t like to be touched? Etc., etc., ad nauseum.

    DRJ (1dff03)

  28. She cannot be a real Muslim otherwise she would not be at a bus stop unescorted.

    nk (dbc370)

  29. Good point, nk. Does that make her an “unusually sensitive” Muslim woman who is only “moderately offended”? A “moderately sensitive” Muslim woman who is “highly offended”? I could go on but you get the idea.

    DRJ (1dff03)

  30. And why assume a ‘Muslim’ woman? Right here, right now, any woman would fit the bill. Definitions and causes for “unusually sensitive” can change on a whim. The door has been cracked open.

    Dana (d85ff0)

  31. The lips of the strange woman drip honey,
    and her speech is smoother than oil;
    but in the end she is bitter as gall,
    sharp as a double-edged sword.

    Her feet go down to her lawyer;
    her steps lead straight to the courthouse.
    Get directions from your own iPhone
    Clear directions from your Google maps.

    Proverbs, Reform Unitarian Church of Siliconn Valley and Sedona Version

    nk (dbc370)

  32. So if a hospital does not obey a religious bigot’s demand, it risks a lawsuit, jury trial and punitive damages. And insurance does not often cover a battery. Thus if the trial takes place in a community with a significant Muslim population, the hospital will be more likely to settle—an outcome that will encourage religious bigotry.

    Hrm. Let Islamics refuse help from Jews. It’ll generally solve itself in the long run.

    OTOH, what if a boorish so-called Christian tells the hospital to “Keep those damned faggots away from me!!“?

    Ahhh, what then…?

    I wonder if that will be supported.

    IGotBupkis, "Si tacuisses, philosophus mansisses." (225d0d)

  33. If a person (say, a baker) had a religious belief against something (say, gay marriage), but was required by law to support it with his labor, could that person sue for having to work in a hostile work environment?

    malclave (4f3ec1)

  34. Hush, Gil. You have expressed your contempt and hatred repeatedly. We really don’t need it repeated.

    Disdain is not hate. I cannot remember how often I’ve said I do not hate you, and yet you dont accept it. I am impressed with how devoted you are to “teh narrative”: Non-believers hate Christians, and their points are invalid for that reason.

    Gil (4e1585)

  35. Furthermore, an important issue will be the standard used to show what the actor “knows … will be highly offensive.” Will a court take judicial notice that all Muslim women are “highly offended” by being touched, or will each case be decided individually based on what the woman felt and the actor knew? Will everyone be required to “know” this is how Muslim women feel? What about my autistic son who hates to be touched — will people be required to “know” that some/many/all autistics don’t like to be touched? Etc., etc., ad nauseum.

    Nobody is required to know anything. The proposed standard is not “knows or ought to know”; it’s “knows”, plain and simple. And it’s this knowledge which makes it a battery, so it would be up to the plaintiff to prove, by the preponderance of the evidence, that the defendant had actual knowledge of her unusual sensitivity. In most cases that would probably be difficult to prove, but if she can prove it then I think it should be battery, and she should be able to recover for it.

    Milhouse (a04cc3)


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