Sexcapades and the Law

The Smoking Gun has the petition that was filed against Washingtonienne Jessica Cutler by one of the staff members she blogged about being, um, intimate with. Apparently he didn't want the rest of us to know he likes spanking (both giving and receiving).

Meanwhile, there's this opinion by the Massachusetts Court of Appeals regarding negligent sex. (NOTE: it has NOTHING to do with Cutler. It's just a similar topic). They established a standard of care:

While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.

They further found she didn't breach the standard:

While the record in this case may have permitted a fact finder to conclude that the defendant's conduct exposed the plaintiff to some risk of harm, the record does not depict conduct that can be fairly categorized as wanton or reckless. Here, the undisputed facts demonstrate that the defendant did not think about possible injury to the plaintiff when she changed her position. There is no evidence in this record to suggest that the defendant's conduct created a "high degree of likelihood that substantial harm [would] result to [the plaintiff]," which is required to prove wanton or reckless conduct.

So, of course, enquiring minds want to know just what the heck they were doing:

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant's body was secured in this position by the interlocking of her legs and the plaintiff's legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff's abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.

Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. While the couple had practiced what the defendant described as "light bondage" during their intimate relations, there was no evidence of "light bondage" on this occasion. The plaintiff's injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively.

So now you know.

Obligatory commentary: Even if the Court found simple negligence rather than recklessness the standard of proof, there'd be room to argue the contact sports exception and related assumption of the risk doctrine. The defense would argue that it is known that one can sprain, strain or otherwise hurt things when engaged in sexual intercourse, that the risk of fractured penis was assumed in agreeing to have sex. The plaintiff could counter by arguing the degree of injury here is not encompassed in the realm of ordinary sexual injuries. But regardless of whether the defense would prevail on these points, it would open the door to minute analysis of sexual acts to determine what is normal versus negligent, and the court just doesn't want to go there. Could you imagine having a waiver in order to enter the bedroom? Idle side question: would one waiver at the beginning of the relationship work, or would you need to update the waiver periodically or when new sexual practices are adopted?

Yep, it's best they didn't go there.

UPDATE: It's come to my attention that the link to the opinion might not work on this last one. If so, go to the Massachusett's Court of Appeals website and click on the slip opinions link. It's the John Doe v. Mary Moe case.

UPDATE UPDATE: Okay, I had to know. Here's a medical article defining penile fracture.

Penile fracture is the traumatic rupture of the corpus cavernosum. Traumatic rupture of the penis is relatively uncommon and is considered a urologic emergency.

Sudden blunt trauma or abrupt lateral bending of the penis in an erect state can break the markedly thinned and stiff tunica albuginea, resulting in a fractured penis. One or both corpora may be involved, and concomitant injury to the penile urethra may occur. Urethral trauma is more common when both corpora cavernosa are injured.

The article also discusses how it occurs:

Etiology: In the Western Hemisphere, the injury most commonly occurs during sexual intercourse when the penis slips out of the vagina and strikes the perineum or the pubic symphysis. Other potential causes include industrial accidents, masturbation, gunshot wounds, or any other mechanical trauma that causes forcible breaking of an erect penis.

In Middle Eastern countries, the injury more commonly occurs secondary to penile manipulation to achieve detumescence. Additional rare etiologies include turning over in bed, a direct blow, forced bending, or hastily removing or applying clothing when the penis is erect.

BY THE WAY: Check out Dweeze's commentary.