Last year, I had the privilege of participating in the Clifford Symposium at DePaul College of Law -- an annual convening of torts scholars. The symposium theme in 2023 was "new torts." The published versions of the symposium papers are now available. My contribution is titled "When a Wrong Creates a Life: Tort Responses to Children Born From Institutional Sexual Violence." Much of the article draws on history, so I'm noting it here. Here's the abstract:
Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a guardian, the resulting child sought monetary compensation from the state for the disadvantages that flowed from these circumstances. Importantly, the lower court that initially considered this claim found it within the bounds of what tort law could and should provide. But a different interpretation prevailed at the appellate level, and, for historically contingent reasons, Williams v. State largely disappeared from view. Instead, cases from the medical negligence context came to dominate judicial discussions—and rejections—of the seemingly “new tort” of “wrongful life.” This Article urges a reconsideration of Williams v. State and the sub-set of “wrongful life” cases that it represents—namely, cases involving (1) nonconsensual intercourse and impregnation in an institutional setting, resulting in a child, and (2) an institutional defendant that arguably violated a duty of care by allowing this sequence of events to occur. Such reconsideration is warranted for several reasons, including evidence that such incidents continue to occur in institutional settings (nursing homes, residential treatment facilities, prisons, etc.); post-Dobbs changes to state-level abortion laws, which will increase the number of pregnancies that lead to live births; and theoretical and doctrinal developments within tort law itself.
The full article is available here. Other legal-historical contributions to this symposium include Molly Brady on "cottages as public nuisances" (previously noted here) and Kenneth S. Abraham & G. Edward White on "How an Old Tort Became New: The Case of Offensive Battery."
-- Karen Tani
