Sunday, July 12, 2015

"Unusually Sensitive" May Soon Get To File 'Assault & Battery' Against Those Who Even Touch Them

There exists an obscure, elite private organization called The American Law Institute that most Americans likely never heard about. I hadn't either until reading the article 'Thin-Skinned and Upset? Call A Lawyer' in The Wall Street Journal, June 23, p. A13). This bunch "includes the justices of the Supreme Court, the chief judges of the U.S. Courts of Appeal and the highest state courts, most law school deans, some law professors and private attorneys."

Why should you be concerned with this group, especially if you are in a position of power, e.g. employer? Well, because it is an influential bunch that "now wants tort battery redefined to protect the unusually sensitive".

That means that if any transgressions make it into tort law, the violators will be in big trouble and they don't even need to be "power players".  It could be something as seemingly minor as tapping a Muslim woman on her shoulder to ask for directions.

Indeed,  according to the author, this legal group "recently voted to make tapping the shoulder of a Muslim woman to ask for directions potentially punishable in a U.S. court of law"

What's the basis for this? The ALI "periodically issues 'restatements' that attempt to codify common law = but also shift the direction the Institute wants it to go".

In 1964, for example, the ALI issued a Restatement of Torts that established the liability of sellers to consumers regardless of fault. At the time only 16 states' laws agreed but now it's ubiquitous.

On May 20 of this year, the ALI - by a very close vote- approved significant changes to its Restatement of Torts affecting assault and battery.  These changes "will have far reaching social and legal ramifications....including favoring some religious beliefs over others."

According to the article:

"The Institute's restatement defines a tort of battery as any contact with another person that 'offends a reasonable sense of personal dignity', or the new addition: contact with another person's 'unusually sensitive sense of personal dignity and the actor knows that the contact will be highly offensive to the other'".

Hence, a guy lost on a street -but who knows that it is offensive to a Muslim woman in burka to touch her, would then be guilty of assault and battery if he taps her on the shoulder to ask directions.

In a similar vein, a black youth minding his beeswax on a street corner,  but approached by a white cop,  could file a charge of assault and battery if the cop taps him on the shoulder to ask questions. This assumes the cop knows full well the recent history and  background of assaults on young black men including Michael Brown, Freddy Grey and others and the kid he taps is "unusually sensitive" to physical contacts by cops. . To the black kid, also knowing the recent history, that tap could constitute an affront to his personal dignity of such magnitude it constitutes assault.

It doesn't end there. As the author of the piece noted "in North Carolina, an employee sued his supervisor for assault and battery because the supervisor - in his own office -smoked a cigar. There was no company rule against that but the employee had warned that he found cigar smoking obnoxious"

While a state court dismissed the case (McCracken v. Sloan, 1979) the American Law Institute noted that "This case would very likely result in liability today".

With these expanded legal definitions of personal dignity, people need to be more aware of the brave new legal world quickly coming to realization.

Perhaps this is a warning to teachers (and parents ) too, not to snatch that smart phone out of a student's  (or child's) hands unless you want him to file assault and battery charges against you!

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