The Appeals Court of Massachusetts upheld a jury verdict against a gay man who sought to hold his ex-partner liable in tort for intentional infliction of emotional distress and battery based on various incidents that occurred during their relationship. The case is M.L. v. S.N., 2014 Mass. App. Unpub. LEXIS 354 (March 19, 2014).
M.L. and S.N. were engaged in a “serious romantic relationship” from 1998 until 2008. Evidently, M.L. was a really hot looking man, since he had once appeared in a nude photo spread in Advocate Men magazine. (Those curious to discover the identity of M.L. who have access to back-issues of Advocate Men (now defunct) should note the court’s description of his photographs, as described in an amicus brief submitted in the case: “a number of the photographs depict the plaintiff naked with an erection or in a position signaling his receptivity to being penetrated through anal sex,” and in one photograph he is shown wearing black leather chaps with a yellow stripe down the side, which evidence at trial indicated was a signal of the wearer’s interest in sexual conduct “involving urination.”)
M.L. claimed that his ex-partner sought to exploit M.L.’s attractiveness by using M.L. as “bait” to lure other men into “threesomes.” M.L. claimed that S.N. would pull down M.L.’s pants or shorts, exposing him in public, for such purposes, and in the course of one threesome that S.N. had facilitated a third party forcing M.L. to perform fellatio to the point of choking by holding M.L.’s head down. M.L. also claimed that S.N. anally raped him while he was unconscious due to drug ingestion, the basis for a battery claim. He also claimed that S.N. had urinated inside M.L. during anal sex without M.L.’s consent.
The trial court overruled M.L.’s motion in limine to have the nude photo-spread kept out of evidence, and barred the battery claim arising from the rape incident on statute of limitations grounds.
The Appeals Court, in a per curiam opinion, said that M.L.’s attorney had failed to preserve his objection to admission of the photos by renewing his objection at the time of their admission, although the court found that it was error for the trial judge to admit them, since they were prejudicial. “We think all would agree that evidence of a nude or partially nude photographic spread showing a young woman, for example in Playboy magazine, would not be admissible as evidence in a trial in which she alleged that her boyfriend years later degraded her and intentionally inflicted emotional distress by forcibly removing her clothing in public and exposing her breasts or genitals,” wrote the court. “A failure to recognize that the photographs at issue here are the same as those in the hypothetical case may be attributable to prejudice concerning the difference between same-sex and opposite sex couples that has no place in the law of our Commonwealth. Likewise, the fact that an individual may have engaged in a sexual act in the past is not license to force him or her to engage in such conduct unknowingly or involuntarily. The rule that is now well entrenched in our law, and codified for certain cases in our rape shield statute, is that an individual’s past sexual conduct cannot and does not mean that he or she is ‘asking for’ rape, sexual assault, or other forms of abuse. The photographs, therefore, should not have been admitted.”
The court also rejected M.L.’s argument that the forced sex with the third party should not be time barred as part of a “continuing tort” theory, finding that this single incident from long ago was “sufficiently discrete” that it should be considered an “individual allegedly tortious act” occurring too long ago to be actionable.
Perhaps now M.L. will have a claim against his trial attorney for professional negligence in failing to object to introduction of the photographs, since it is possible that the Appeals Court would have upset the jury verdict had that objection been preserved.