Copyright 1965, American Law Institute
§ 55 FRAUD OR MISTAKE AS TO HARMFUL OR OFFENSIVE CHARACTER OF CONTACT
The rule stated in § 892 B(1) as to consent induced by fraud
or mistake as to the essential character of conduct applies to fraud or
mistake as to the harmful or offensive character of a contact.
COMMENTS & ILLUSTRATIONS: Comment:
a. See § 892 B, Comments a to e.
1. A consents to being touched by B with a piece of metal which is heavily charged with electricity. B knows that it is so charged, and that A is ignorant of the fact, either because B or some third person has misrepresented it to him, or because A has made a mistake for which no one else is responsible. A's consent is not effective to prevent B's liability for battery.
b. Fraud or mistake as to relation of actor to other. The relation between the actor and another may be such as to prevent certain bodily contacts from being regarded by reasonable persons as offensive, although if inflicted by other persons they would be properly regarded as highly so. If the actor knows that a consent to such a contact is given in the mistaken belief that such a relation exists, the consent is not effective as consent. This is true where there is a mistake as to the identity of the person to whom the consent is given; and it is equally true where his identity is known. There are many familiarities which are universally recognized to be permissible or even obligatory between husband and wife, and which no husband or wife should regard as offensive, which in general are properly regarded as highly offensive if offered by persons other than the spouse. So too, the contacts which are inseparable from medical examinations, operations, and treatments would be repulsive to many persons of ordinary modesty and sensibility if inflicted by one other than a physician acting in his professional capacity, although only a person with an unreasonable sense of personal dignity and modesty would regard them as more than merely unpleasant if made by a physician. So too, the fact that a particular contact is necessary may deprive it of its offensive quality. There are many contacts to which no reasonable person would hesitate to submit when they are necessary for some proper purpose, such as the cure of a disease, which, but for such a necessity, would be highly offensive to any person of ordinary modesty. Thus, if a physician indulges in familiarities which are unnecessary to the treatment of his patient, assent to them in the mistaken belief that they are a necessary part of the treatment is not effective as consent.
2. A, knowing that his wife is alive and that B does not know it, goes through a bigamous form of marriage with B, and has intercourse with her as his wife. A is subject to liability to B.
3. A, a physician, called to attend B in childbirth, takes C, a layman, with him. B, believing as C knows, that he is a physician, permits him to attend her during her confinement. C, under A's direction, holds B's hands. C is subject to liability to B.
4. A, a physician, induces B unnecessarily to expose her person by telling
her that this is necessary for a thorough diagnosis and assists her in
taking off her clothing. A is subject to liability to B.
REPORTERS NOTES: The language of this Section has been changed from the first Restatement, to refer to the fuller § 892 B, and to refer expressly to fraud as well as mistake. No change in substance is intended.
Illustration 2 is taken from Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747 (1868). In accord, as to intercourse with one who has a venereal disease, are Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920), rehearing denied, 181 N.C. 66, 106 S.E. 149; De Vall v. Strunk, 96 S.W.2d 245 (Tex. Civ. App. 1936); State v. Lankford, 29 Del. (6 Boyce) 594, 102 A. 63 (1917).
Illustration 3 is taken from De May v. Roberts, 46 Mich. 160, 9 N.W. 146, 41 Am. Rep. 154 (1881).
Illustration 4 is based on Bartell v. State, 106 Wis. 342, 82 N.W. 142 (1900), and Commonwealth v. Gregory, 132 Pa. Super. 507, 1 A.2d 501 (1938). See also Bowman v. Home Life Ins. Co., 243 F.2d 331 (3 Cir. 1957); and cf. Hobbs v. Kizer, 236 F. 681 (8 Cir. 1916), abortion represented to be other operation; People v. Steinberg, 190 Misc. 413, 73 N.Y.S.2d 475 (1947), pretended vaccination, with water.