Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 1. Introduction
is a “preponderance of the evidence”; proof in a criminal trial requires that the jury be convinced
under the higher standard of “beyond a reasonable doubt,” a standard that is often impossible to
meet in sexual assault cases. Moreover, in a civil case the plaintiff controls the course of the
litigation and pursues private satisfaction (perhaps in the form of money damages, but also
perhaps in the form of an apology or an agreement to stay away from previously shared spaces).
This is distinct from a criminal case, in which a public prosecutor controls the litigation in pursuit
of a public punishment. See generally Ellen Bublick, Torts Suits Filed by Rape and Sexual
Assault Victims in Civil Courts, 59 S.M.U. L. REV. 55 (2006).
Research suggests that tort suits against alleged assailants have been rising over the past
several decades. One headline-grabbing example was pop star Taylor Swift’s battery suit against
a radio talk show host. Swift claimed he lifted her dress and groped her during a pre-concert
meet-and-greet. A jury believed Swift and awarded her the symbolic $1 she sought. Emily Yahr,
Jury Says Taylor Swift Was Groped by Radio DJ, Awards Her a Symbolic $1 Verdict, WASH.
POST, Aug. 14, 2007. Recovery of more substantial damages in such suits appears infrequent,
though settlement practices obscure much from view. Tort actions for sexual assault and battery
against third parties are more visibly successful, at least when such third parties bear some
responsibility for the assailant’s actions. Survivors of sexual abuse by Michigan State University
sports physician Lawrence Nassar sued the university on the theory that it was vicariously liable
as employer for its employee Nassar’s battery. Later in the book we will take up the subject of
employers’ liability for the torts of their employees. For now, the important point is that the
plaintiffs’ complaint raised a classic battery cause of action, alleging that Nassar “intended to
cause harmful or offensive contact with Plaintiff’s person, or intended to put Plaintiff in imminent
apprehension of such contact.” Complaint at 20, Jane JD Doe v. Doe 1 (Cal. Super. Ct.
Sacramento 2016) (No. 34-2016-00200075), available at https://perma.cc/97RS-SS69. In the
spring of 2018, Michigan State agreed to a $500 million dollar settlement with 332 plaintiffs.
Later the same spring, a civil jury in Georgia awarded a rape victim an astounding $1 billion in
damages against the security firm that employed a guard who assaulted the plaintiff in her friend’s
apartment complex. For more on tort suits against third parties for sexual violence and
misconduct, see Ellen Bublick, Torts Suits Filed by Rape and Sexual Assault Victims, supra;
Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J. TORT L. 39 (2018).
Despite, or perhaps because of such large awards, it is worth asking whether money
damages are the right way to address the harms of sexual assault. (Are such awards collectible?
Who pays? We will return to such questions in a subsequent chapter of this book.) Are people
who experience the harm of sexual assault well-served by having to characterize their claims as
“batteries”—a generic term for all types of harmful and offensive contact—rather than as
something more specific, something that better expresses the nature of the injury? Should there
be a tort called rape? See Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument
for Tort Law, 10 J. TORT LAW 1, 61-62 (2017). If you were able to craft such a tort from scratch,
what would be its elements?
8. The Knobe Effect. The philosopher Joshua Knobe has studied people’s intuitions about
the distinction between intentional and unintentional effects. He makes an important finding,
known in the literature as the Knobe Effect: people label certain foreseen outcomes intentional
and others unintentional on the basis of value judgments about the outcome. In particular, people
are much more likely to attribute intentional responsibility to actors who foresaw (but did not care
about) bad outcomes than to those who foresaw (but did not care about) good ones. So, for
30