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Tort: Sex and the Reasonable Person

In May 2005, an appellate case in Massachusetts gave safe sex a completely new meaning. Apparently, a man took his long time girlfriend for the tort of negligence. In this case, the two were engaging in an intimate session when an ill-advised position led to the man fracturing his person. The case was a first of its kind and the court was going through a hard time arriving to a verdict, workable and appropriate standard of care due to mandatory application of private consensual sexual conduct. In this regard, the court established that the United States laws were not formulated to a scope governing consensual sexual behavior. Additionally, the court went on to note that no accepted values and customs that determine the jurisdiction of widely diverse and intensely form related to this behavior.

In this accord, the court arrived to the conclusion that, under the circumstances, the case was based on, the issues of reasonable care and general negligence were not appropriate for cases of physical injury related to consensual sex. Rather, the court held that the plaintiff would have instead shown conduct rising to a state of “reckless or wanton”. The court opined that even though the trial record supported the notion of that the defendant’s conduct led to the plaintiff being harmed, it was not in support of a finding in reckless or wanton conduct. This case indeed raised a fascinating legal issue. With numerous positions, preferences and idiosyncratic fetishes, and fantasies, the case led to a question being asked whether the law should provide considerations for “reasonable and ordinary care” in sex. In this regard, I found this case to be the most outrageous. Details of the case can be found at

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