Date: Thu, 29 Nov 2007 15:27

From: Tsachi Keren-Paz

Subject: Third party duress and battery

I'm thinking mainly in the context of forced prostitution: that a victim could sue in battery despite the arguable apparent consent to provide commercial sex. I'd argue that 1) liability for battery should be strict in any event i.e. reasonable mistake is not a defence (which seems to be the case in England, according to dicta (eg Sedley in Hepburn v Chief Constable of Thames Valley Police and based on the false imprisonment Evans case, but not in Canada: Sansalone); 2) Given the fact that the victim does not really have a way to convey her being under duress without a serious risk to herself (which seems to be the case in your example as well), she should not be estopped.

Of course, the lower social value of purchasing commercial sex in comparison to providing abortion services, might support liability in the commercial sex context, while oppose liability in the abortion example, although such a distinction, I think, is not easy to make on grounds of principle.

Tsachi

Dr. Tsachi Keren-Paz
School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 584358
http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm
Book "Torts, Egalitarianism and Distributive Justice"

----- Original Message -----
From: Tettenborn, A
Sent: Thursday, November 29, 2007 7:13 PM
Subject: FW: third party duress and battery

Nice point. Presumably you're thinking of something like this: overbearing boyfriend threatens girlfriend that unless she aborts his baby he'll kill her, she goes to abortionist and asks him to do it, and he does so. I'd rather doubt if we'd hold the abortionist liable there: but why not I'm not quite sure. Possibly she'd be estopped from saying she didn't consent by her request.

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