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Legal VIEW

For Courts, Bedroom Door Stands Ajar

January 28, 1988|JEFFREY S. KLEIN

There is almost no topic off limits in a courtroom, or so it seems. Judges are called upon to resolve nearly every kind of dispute imaginable, ranging from a vitriolic divorce to the breakup of a family business, so perhaps it's not surprising that they are also invited into the bedroom to arbitrate promises of a more intimate nature.

No less surprising, judges disagree about whether the courts have any business in the bedroom at all--figuratively speaking, of course. Several different California appellate cases illustrate the disagreement.

In 1980, one Court of Appeal was asked to decide whether Stephen K. could sue Roni L. for falsely representing that she was on birth control pills. The reason her contraceptive practices wound up in court was that Stephen alleged he had sexual relations with her based on her purportedly fraudulent representation. When she gave birth to his child and sued him in a paternity action, he countersued for fraud.

Suit Dismissed

The court dismissed his suit, reasoning that "although Roni may have lied and betrayed the personal confidence reposed in her by Stephen, the circumstances and the highly intimate nature of the relationship . . . are such that a court should not define any standard of conduct."

Last year, another California Court of Appeal refused to allow a suit for fraud by a woman who claimed she had an abortion only after her lover, a married man, promised he would impregnate her a year later if she terminated the pregnancy.

The court conceded that although the man may have deliberately misrepresented his intentions in order to persuade her to have the abortion, "their procreative decisions were so intensely private that we decline to intervene.

"The courts should not undertake the adjudication of promises and representations made by consenting adults regarding their sexual relationships," the court observed, or else "we will of necessity be required to set standards for the making and performing of such promises."

On the other hand, some courts seem more willing to set standards for the bedroom, or at least less convinced by the privacy argument. In the case decided last year, the woman who had an abortion was allowed to sue, relying on a legal theory called intentional infliction of emotional distress. And in a 1983 case, Barbara A. sued John G. seeking compensation for injuries she suffered from an ectopic pregnancy, in which the fertilized egg settles outside the womb.

False Promise

She said he falsely promised that he was infertile and could not make her pregnant. The court decided that her suit should not be dismissed on privacy grounds.

In a 1984 case, a woman sued a man because she had contracted genital herpes through sexual intercourse with him. This court also refused to drop the case, because there was no child involved and public health and safety concerns outweighed the privacy of the bedroom.

Which just goes to show you that judges are often quite unpredictable, whether their cases arise in the bedroom or the board room.

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