Rape is Trespass
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Anita Bernstein
Abstract
By furnishing new blackletter on battery, assault, and false imprisonment, Restatement (Third) of Torts: Intentional Torts to Persons provides illustrations of what the medieval writ of Trespass once remedied. All three causes of action restated in this Restatement derive from the trespass writ, as do other modern doctrines that fall under intentional torts to persons. This article, hewing to the tradition that the law of trespass provides redress for direct, unmediated, and wrongful boundary-crossing, argues that sexual penetration unwanted by the person penetrated is trespass. If rape is trespass, then consequences follow for the law of torts as well as crimes.
Acknowledgements
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School. This Article draws on a chapter of my book, The Common Law Inside the Female Body (Cambridge University Press, forthcoming 2018). I thank Brooklyn Law School for research funding and furnishing a lively faculty workshop on a draft of this Article. Thanks also to Jacob Corré, Alice Ristroph, and Chris Beauchamp for helpful guidance, and Alia Soomro and Veronica Mishkind for research assistance.
© 2017 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- Symposium Issue: Appraising the Restatement (Third) of Torts: Intentional Torts to Persons
- Conceptualizing the Intentional Torts
- Restating the Tort of Battery
- Restating Intentional Torts: Problems of Process and Substance in the ALI’s Third Restatement of Torts
- The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons
- Rape is Trespass
- Restating the Intentional Torts to Persons: Seeing the Forest and the Trees
- Research Article
- Treating Wrongs as Wrongs: An Expressive Argument for Tort Law
Artikel in diesem Heft
- Frontmatter
- Symposium Issue: Appraising the Restatement (Third) of Torts: Intentional Torts to Persons
- Conceptualizing the Intentional Torts
- Restating the Tort of Battery
- Restating Intentional Torts: Problems of Process and Substance in the ALI’s Third Restatement of Torts
- The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons
- Rape is Trespass
- Restating the Intentional Torts to Persons: Seeing the Forest and the Trees
- Research Article
- Treating Wrongs as Wrongs: An Expressive Argument for Tort Law
