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II. Assault and Battery: Intent and Autonomy

In the absence of statutes that delineate acceptable from unacceptable behavior — that’s the realm of criminal law, and still plenty complicated — tort law often requires a court to make distinctions on the fly as individual cases come up. In Chapter II, we look at a cluster of problems arising generally from situations in which society — or more precisely, society as constructed through the distinct institutions, hierarchies, and legacies of the legal system — might say the wrongness of an act may be minimal or entirely lacking, yet a victim steps forward to earnestly and convincingly claim that his or her subjective wishes about bodily integrity have been disrespected.

The rough and tumble of daily life — “the implied license of the playground” — allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least distill the instincts that might be in opposition to one another, in order to lay bare the choices a legal system might make, and how to express them in consistent ways?