Time to recognize the tort of mental distress: Tsinman
By AdvocateDaily.com Staff
Mental distress arising from sexual coercion is something that can no longer be ignored, creating the need to recognize the tort in family law, Toronto family lawyer Inna Tsinman tells AdvocateDaily.com.
“It’s about trying to break the bond between sex and economics,” says Tsinman, principal of Tsinman Law. “Through this tort, I want to see a shift in thinking, so both men and women realize that equal pay and position in the workforce is inherently tied to sex.”
She says that when women are economically dependent on their partners, the balance of power is against them, and that the same can be said for men who earn less than their spouse.
“Sex is being traded for money,” Tsinman says. “Psychologists have shown that the exchange of male resources for female sexuality is a widespread aspect of human social life and mating practices. It’s not openly discussed in our day-to-day, and no one really admits it, although it is in our humour and our subtext. Nevertheless, this exchange, although widespread, is the underpinning of inequality and in the most severe cases a degradation of personhood."
Tsinman, who points to research from visiting Harvard professor Catharine MacKinnon and her theory of “coerced caring,” says women who argue for equality in the workforce must first recognize the inequality that inherently exists in such relationships.
“For women to argue for equal pay and promotion, it’s contradictory,” she says. “What is the incentive for a man to give up his power if that’s what he holds onto in order to have access to sex?”
Tsinman says she often encounters spouses — both men and women — who experience mental distress as a result of being in an intimate relationship with an economic power imbalance.
“If you’ve been coerced to have sex against your will, you suffer tremendously,” she says. “You feel badly about yourself.
Tsinman cites the example of economic coercion in a situation where one spouse is threatening to cut off financial support unless their spouse offers sex in exchange.
“Or it could be more subtle,” she says. “It could simply be an expectation to ‘perform’ when the spouse comes home from work.”
In the context of family law, Tsinman says women may stay in a marriage and continue to perform sexually, despite wanting to separate.
“They may delay the separation if they don’t feel they are economically stable enough to get out of the relationship,” she says. “I have seen women locked in bad relationships because of economic dependency.”
She called the tort of mental distress the “tip of the iceberg” when it comes to a larger shift in thinking.
Tsinman says women and men from all socio-economic backgrounds could fall victim to this form of coercion, and it is not limited to certain cultures or income levels.
She encourages people to consider if they would be with their spouse if they were economically independent. While she agrees people have the right to choose their partner, she says marriages are more likely to succeed if both partners function as a team.
“This tort is not just a tort. It’s a way of thinking towards equality,” she says.