Date: Fri, 30 Nov 2007 15:34

From: Adam Kramer

Subject: Third party duress and battery

TKP, I don't think the subjective preference can be relevant. The question is the objective manifestation, and the unreasonable reliance point/my point about O'Brien is all about this objective manifestation. Whether you can blame the victim for the gap in what they say and what they intended is irrelevant: the point is what the person to whom the communication is made should reasonably have understood.

As to Robert's correction of my email, he is quite right that a reasonable belief may go beyond the objective manifestation, e.g. where a third party has engendered the belief (e.g. someone telling Robert I want to be kissed, or someone telling a buyer that the seller means old oats). In that situation in civil law the third party's intrusion would usually be disregarded as the relevant feature is what the prostitute or contractor would have conveyed to a reasonable person, leaving the second party ('customer') to pass on his losses to the misrepresenting third party; although criminal law (due to the sanctions involved) is more interested in blame and so will take the third party's interference into account in deciding whether the customer is to be punished.

Adam

-----Original Message-----
From: Tsachi Keren-Paz
Sent: 30 November 2007 13:23
To: Robert Stevens; Adam Kramer
Subject: Re: ODG: 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.

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