Trotter v. Okawa , 248 Va. 212 ( 1994 )

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE STEPHENSON join,

dissenting.

In my opinion, the amended motion for judgment is insufficient in law because it establishes that the plaintiff is barred from a recovery under the rule of Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990).

In Zysk, we held that a party consenting to and participating in the illegal act of fornication cannot recover damages from the other participant for the consequence of that act. Id. at 34, 404 S.E.2d at 722. The rule is limited to the extent that the consent must be “freely given without fraud or duress.” Id.

Drawing on the “fraud and duress” limitation in Zysk, the majority concludes that the amended motion for judgment survives demurrer because it “alleges that Trotter participated in the act of sexual intercourse under duress and coercion caused by Okawa’s exploitative treatment of her patient.” I disagree.

In the present case, a competent, adult male, who claims to have emotional problems, seeks recovery in damages against a woman, who allegedly exploited his status by duress and coercion, because she persuaded him to engage in sexual activity with her. I would hold that this alleged “exploitation,” which, given these allegations, is contrary to human experience, does not amount to such “fraud and duress” that will support a cause of action for damages.

Thus, I would affirm the judgment below.