PC and MeToo Movements Join in Trump-Kiss Suit; Legal Action Ignores Both Law and Common Sense, Says Winning Expert
WASHINGTON, D.C. (February 25, 2019) – A former campaign staffer, Alva Johnson, has sued President Donald Trump for what she claims is “sexually predatory conduct,” but the legal theory seems to ignore the law of battery, the actual civil tort law theory under which the action is actually brought, argues public interest law professor John Banzhaf, who teaches torts and has won over 100 cases of sex discrimination against women.
The legal complaint suggests that the civil tort of battery consists of touching a person without their consent, but that is only half the definition, since the defendant must also intend the conduct to fall outside the long list of socially-sanctioned (and therefore permissible) bodily contacts. For example, tapping someone on the shoulder, brushing by them to get out of a crowded subway car, grabbing their arm if they appear to be about to fall, etc., do not constitute a battery even if the person touched never consented since they are sanctioned by social custom.
Whether or not a touching is socially sanctioned, and therefore lies outside the scope of battery, can and often does depend on the situation, including the events, and the relationship between the parties.
For example, while obviously no one is free to run up to a stranger and hug, kiss, or even pat their backsides, even these touchings can be regarded as normal and accepted - and therefore socially sanctioned - on certain occasions.
Banzhaf notes that classmates frequently hug each other when final exams are over, that members of a team may wet each other with champagne and/or ice upon winning a championship, and that someone rounding the bases after hitting the game-winning home run is likely to be patted on the posterior by teammates.
Social kissing, likewise, has become somewhat ubiquitous as well as ambiguous, says Banzhaf.
He notes that one person may feel uncomfortable when interacting with a "hugger" or a "kisser," but moving forward with a hug or even a kiss, especially between persons who know each other, is hardly regarded as a social wrong which necessarily subjects the initiator to significant legal damages.
Moreover, because battery is an "intentional tort," the initiator must intend that the bodily contact be both unconsented and unsanctioned.
So, for example, a boy who kisses a girl because the girl's friends have all told him that she wants this indication of affection, or a man who taps a women on the shoulder from behind to get her attention, only to later learn that she was offended because her religion prohibited any conduct by a male, is not subject to liability in battery. The test isn't whether she was offended, but rather whether Trump intended to offend.
Further evidence that this brief kiss - in which Johnson was not held down nor did she physically nor vocally protest - appeared to be socially sanctioned in this situation comes from two women who allegedly witnessed the incident: then-Florida Attorney General Pamela Jo Bondi, and State Director Karen Giorno.
Johnson admits in the complaint that, although both allegedly witnessed the incident, neither protested in any way. Indeed, both seemed to approve. According to the complaint, "as Ms. Bondi walked off the RV, she glanced at Ms. Johnson and smiled. Ms. Giorno, walking behind Ms. Bondi, grabbed Ms. Johnson's elbow and gave it an approving tug."
If two strong, successful, and outspoken women thought that the touching under the circumstances was OK (socially sanctioned), it's hard to claim that it wasn't, and harder still to claim that Trump would publicly cause a bodily contact he intended to be socially unsanctioned and therefore legally actionable.
Moreover, to the tens of millions of Americans who were moved by the picture of the famous Times Square kiss on D-Day, or who watched hundreds of movies where two people who had just met tried awkwardly to decide whether to initiate a kiss or respond favorably to one, the idea that someone would literally seek to make a federal case out of a single kiss - which in fact missed its mark - and label it as "sexually predatory conduct" entitling the recipient for huge damages, probably would seem a bizarre marriage of the political correctness movement and the MeToo movement.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf