This post turns to a new aspect of the legal history of
intimate deception. When I started
researching Intimate Lies and the Law,
I suspected that judges might deny remedies to deceived intimates because they
thought deception within intimacy was too trivial a subject to be worth
judicial attention. However, I soon discovered
that many judges deny remedies not because they think intimate deception is
unimportant, but because they think it is vitally important.
These judges are committed to preserving existing norms
in courtship, sex, and marriage and convinced that those norms naturally—even
inevitably—include pervasive deception.
This view extends back decades.
Here’s how a 1947 New York court explained why it was
denying redress to a woman duped into marrying a man who had deliberately
concealed his drinking problem: “Boastfulness and self approbation are as
natural and as much to be expected under such circumstances as the strut of the
rooster in the barnyard.” In other
words, the law should not ask a fiancé
to be any more honest than a strutting rooster.
Modern courts usually do not look to the barnyard for rhetorical
inspiration. But courts continue to insist
that the law should expect and accommodate deception within intimate
relationships. When judges assume that
deceit is an ordinary and expected part of courtship, sex, and marriage, they
help make that so—normalizing the deception by protecting it from legal redress
and legal condemnation.
— Jill Hasday
