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