Date: Tsachi Keren-Paz

From: Fri, 30 Nov 2007 13:23

Subject: Third party duress and battery

Quoting RS:

In my example of the boxing ring, I am responsible for the impression of consent.

I agree. But in the forced-prostitution scenario, the presentation of consent is the result of extreme duress itself. The way I see it, the objective test is based on the idea that it'd be fair to hold the presenter accountable for the gap between her subjective preference and the objective manifestation, and this is based on some implicit assumption of fault in creating this mistake/accident. This is coupled with the requirement that the reliance by the other party is reasonable. I argue that in the client - forced-prostitute scenario it is exactly the opposite. We cannot blame the victim for this gap, and the reliance is unreasonable, since it ignores the phenomenon of trafficking, and the inability to rule out that the sex worker is not forced. This is sufficient to impose liability even if we need to establish fault. However, liability for battery in general, and in this context in particular, should be strict.

TKP

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"

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