Prompt: create a fact-pattern, and a question about it. Provide 4 answers, only one of which is correct. Explain why the right answer is right and the wrong answers are wrong.
A, a physician specializing in the killing of unborn children for parents’ convenience, enters into a contract to kill the unborn child of B, a pregnant mother whose unborn child’s life displeases her: the unborn child is a girl and B wanted a boy. During the death and dismemberment of the unborn girl, B is unconscious, and A, a woman with the gay gene, reaches her hands into B’s shirt, cups B’s bare breasts, and snarls, “There is nothing more beautiful than the breasts of a woman intent on killing her unborn child for convenience.” A then begins to pull pieces of B’s dismembered daughter out of B—and laughs while eating some of the pieces of the dead child, while bagging up the other pieces to sell on the white market. A whistleblower in A’s office sends a secretly-recorded videotape of A’s actions to the police and to B’s lawyer. Which of the following accurately describes A’s potential criminal culpability or tortious liability:
A. Tortious Assault, because A touching B’s breast was totally offensive.
B. Tortious Battery, because A intended to cause contact with B’s person and A’s action did cause harmful or offensive contact.
C. Criminal Negligence, because A failed to express an appreciation for B’s beauty and bloodlust in a way that would be consistent with B’s sense of empowerment and entitlement.
D. Murder, because A caused the unlawful death of B’s child with malice aforethought, i.e., the intent to kill.
Answer B is correct, because tortious battery arises by an act whose actor intends to cause contact and causes harmful or offensive contact with the person of another. A would manifest intent either by indicating a desire that her act would cause contact, or a knowledge, to a substantial certainty, that her action would cause contact with B. Here, A’s intent can be inferred by her concomitant comments about B’s body as she touched her victim. The contact would be offensive if it could offend the personal sense of dignity of a reasonable person. Here, A touched B while B was unconscious and anticipating only the touching necessary to kill B’s child, dismember the child, and remove the child’s body-parts from B’s womb. The extra touching, especially since it was sexual, could offend the personal sense of dignity of a reasonable person. Also, the sexual touching was by a woman to another woman. There is a gay gene and a straight gene. Most women have the straight gene, so it is possible that A’s sexual touching of B could offend B’s genetically irresistible—thus reasonable—sense of personal dignity as a heterosexual, if, in fact, B has the straight gene. Because A desired to cause contact, and caused offensive contact, A would be culpable for tortious battery. A could raise the defense of consent, because B consented to touching—but that defense would fail, because A’s touching exceeded the scope of B’s consent to be touched: B consented to being touched only in the ways and to the extent necessary to kill B’s daughter, dismember the girl, and drag the girl’s dismembered corpse from her mother’s womb; but B did not consent to the unnecessary touching of B’s breasts—and certainly did not consent to the sexual way in which the touching occurred.
Answer A is wrong, because tortious assault arises only when a defendant puts a plaintiff in reasonable fear of impending harmful or offesive contact; and the plaintiff must be award of the impending contact to fear it—but that awareness is missing, thus that fear cannot arise, when the plaintiff is asleep. Here, the plaintiff was asleep, and so cannot fear impending contact, thus cannot be tortiously assaulted.
Answer C is wrong, because negligence requires the existence and breach of a duty. Here, A had no legal duty to compliment B’s breasts or bloodlust—only a contractual duty to kill B’s child and scrape its corpse out of B’s body (a duty which A fulfilled).
Answer D is wrong, because murder requires unlawful homicide, but abortion, by law, is justifiable homicide: a Republican man—writing for the Supreme Court majority in Roe v. Wade, 410 U.S. 113 (1973)—declared it generally unlawful to write laws that impede, much less criminalize, the killing of unborn children for convenience.