Although you guys say this is a terrible hypo, I took it seriously and wrote it out. Our class spent a lot of time on consent, so this was a good refresh. My answer is below. Any feedback would be nice. Note that I didn't address anything except battery and defense of consent. After reading the responses above, I think there may be a tenuous case for assault as well. IIED is unlikely because there is no evidence of severe emotional harm or any bodily harm (although you could possibly argue that such emotional harm is inherent when achild has intercourse, whether they are conscious of it or not). The other causes of action are irrelevant, however, because the hypo clearly asks for you to only address Prudence's rights against Dasher.
Dick Dasher may be liable for battery against Prudence. An actor is liable for battery if he voluntarily acts, intending to cause harmful or offensive contact or imminent apprehension of such contact with another or a third person, and such contact actually results. However, if the contact is privileged because the other consented to the contact, then the actor is not liable for battery.
Prudence has a prima facie case against Dick Dasher for battery. Dick has voluntarily acted by having intercourse with Prudence. He has also intended contact with Prudence that a reasonable person would find offensive: a person of ordinary morals would find it offensive for an adult to have intercourse with a minor. Furthermore, an offensive and harmful contact actually occurred. Although Dick can challenge the harmfulness of the contact, society has labeled such contact as harmful and offensive by illegalizing it in criminal law. It is difficult to say exactly what the harm was (psychological? Moral?). Whatever the case, the court will be likely to adhere to norms established by the legislature deeming such contact offensive and harmful.
Dick will raise the defense of consent. Prudence’s acquiescence to the intercourse could be interpreted by a reasonable person as consent. As shown in O’Brien v Cunard Steamship Co., a person consents when her actions objectively indicate such consent. The facts in this case are stronger because Prudence
has explicitly denied permission before. This shows that Prudence would have no problem refusing intercourse and her silence is more likely to be consent. Prudence may argue that the facts are weaker in this case, and consent is less clear than it was in O'Brien. In O’Brien, the plaintiff actually waited in line and raised her arm. However, in this case, Prudence has made no direct act showing her consent. Nevertheless, based on her discussion with her dad, Dick can show that Prudence may have actually, subjectively consented to the intercourse. Her acquiescence was directly motivated by a discussion with her friend who told her that sex could be fun. It is therefore likely that Dick can show that Prudence did consent. However, the issue is whether a minor’s consent is valid.
Although, as a minor Prudence’s consent is invalid under criminal law, under the rule of Barton v Beeline, Dick would prevail in his defense. In that case, the minor who consented to sexual intercourse with a driver was not allowed to receive damages because she encouraged the criminal act. Even though such consent was deemed invalid for the purposes of criminal law and did not absolve the driver of the criminal act of statutory rape, he was nevertheless privileged to have such contact under tort law. The situation is identical here. Prudence has consented to an act that is illegal but this consent is adequate to make Dick immune to civil damages.
Prudence can argue that this law is rarely followed and is archaic and should be abandoned. A majority of modern courts adhere to the position that consent to a criminal act is invalid. The court should deter statutory rape with the full force of the law by imposing civil damages as well as criminal liability. Therefore, the court should adopt an irrebutable presumption of non-consent in cases involving intercourse with minors. However, Dick can argue that the best way to deter such acts is to not reward those who encourage such acts, such as Prudence. The law would, in fact, encourage statutory rape if it rewarded those who consented to it. The criminal liability that Dick has is enough deterrence as he may be sent to jail and be listed as a sex offender. It is unnecessary to provide any further deterrence to Dick.
Prudence can argue that greater deterrence is necessary in this situation because statutory rape may be difficult to prosecute. The minor may have consented to the act, or the minor may be afraid to testify against the aggressor, which would make it easy for the aggressor to avoid criminal liability. Therefore, when such acts are exposed and individuals like Dick are brought to court, they should be punished more harshly, in order to compensate for the difficulty of prosecuting these cases. The law must encourage private individuals to act as private prosecutors in such situations, because public prosecutors may either be unable to take the case, or unable to succeed in prosecution.
However, Dick can further argue that there is no need to impose liability on him because there is no need to compensate a victim who has willingly consented to the act. Compensation in this case would be a windfall for someone who is arguably just as culpable as the actor. Prudence can counter this by showing that a minor should not be held as responsible for her actions, so she is not as culpable as Dick. Furthermore, she should be compensated because a minor may easily suffer psychological, moral and physical harm from sex at such an early age.
A third purpose of tort law, to enforce societal norms and morals, is best served by imposing liability on Dick. The legislature has sent a clear message by enacting the statutorty rape law that makes Dick’s actions criminal. Such conduct is reprehensible. Dick can counter that legislature could have easily added that such conduct makes one liable for civil suit as well, regardless of consent, but the legislature did not specify this. When the legislature therefore intended to leave this out, and did not mean to extend civil liability in a case where the minor has consented to intercourse.
Despite Dick’s arguments, a court will probably determine that Dick is liable because the state has a great interest in deterring statutory rape. It is more effective to put the burden of preventing statutory rape on the more responsible individual – the adult, who has the better ability to avoid the situation. The minor is less mature and less responsible for her actions. Therefore, rewarding or deterring the minor is less important than deterring the adult. Therefore, liability should be imposed on Dick, even though Prudence consented.