No, I am not interested in “punishing” women for having sex

Cross-posted from Secular ProLife

I went to law school. This has affected my way of thinking, for good and for ill. I am now fluent in legalese.

The purpose of legalese is to increase clarity. I realize that that’s very difficult for non-lawyers to believe! But it’s true, and in this post, I’ll show you by translating some legalese. Please bear with me. I promise there’s a pro-life point at the end.

It’s been said that possession is nine-tenths of the law. I’m not sure that’s right. Much of the law (I won’t assign a number) is about the allocation of risk.

This is especially true of tort law. A tort is pretty much anything that causes damage to persons or property (other than damages that come out of violating a contract, which are handled, appropriately enough, by contract law). So torts encompass a wide range of things. If you ever go to law school, you will study many old-timey tort cases involving trains. But tort cases may also be about car accidents, slip-and-falls, dog bites, and all sorts of other routine matters.

Torts can be divided into two general categories. Intentional torts are instances where someone deliberately causes damage; for instance, punching somebody may not only lead to criminal charges, but also to a private lawsuit for the intentional tort of battery. Then there are the non-intentional torts, which are accidental. I’ve already mentioned some of those: slip-and-falls, and so on.

In a non-intentional tort, nobody has done anything criminal or morally abhorrent. But damage has been done—in the form of hospital bills, a totaled car, or whatever else—and the court must decide who will foot the bill. Will it be the person who innocently caused the situation? Or will it be the person who innocently was minding her own business and was harmed by the situation? Neither option is ideal, but it has to be somebody. So the law’s function is to allocate the risk of the accident.

When it comes to intentional torts, the court may not only order the perpetrator to pay for the actual costs of the damage, but also order additional payment to the victim—”punitive damages,” so called because their purpose is to punish the person who committed an intentional tort. But for non-intentional torts, punitive damages usually aren’t on the table, because nobody needs to be punished; it’s purely about compensation.

For non-intentional torts, a key concept is contained in the word “foreseeable.” The court asks: who was in the best position to prevent this tort from happening? Put yourself in the shoes of the person being sued. Could that person have reasonably predicted that what happened was at least a possibility? If so, the risk will be allocated to that person. If not, the risk will be allocated to the victim.

The fact that something is foreseeable does not mean that it wasintentional. (Remember, the fact that we’re even talking about foreseeability probably means that it was a non-intentional tort.) A dog owner does not consent to her dog biting someone. A corporation does not consent to its employees doing stupidly dangerous things on the job. A grocer does not consent to a glass jar falling off of a shelf and injuring a customer. But they may still be liable for the damages caused by their torts. It happens all the time.

So when abortion supporters chant “Consent to sex is not consent to pregnancy!” and accuse the pro-life movement of wanting to “punish” sexually active women (as if babies are punishments, as opposed to human beings), my mind always goes to the concept of foreseeability. When a person has sexual intercourse, pregnancy is a foreseeable result. That does not mean that the sexually active person has done something wrong or deserves to be punished. Let me repeat that: saying that pregnancy is foreseeable is not a moral judgment. It’s just an acknowledgement that, let’s face it, the cause of pregnancy is not exactly mysterious!

So the question is: who will bear the risk of the situation? Will it be the sexually active person, who did not intend for pregnancy to occur, but who at least has some control over the situation? Or will it be the unborn child, who has no control over the situation whatsoever, and whose very life is at stake?

The answer to that question is very easy when two lawyers are speaking to each other in legalese: it’s all wrapped up in that one word, “foreseeable.” But when trying to have that conversation in plain English, instead of having one word, you have… well, you have this entire blog post.

So don’t knock legalese. It’s actually pretty useful.

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