Utilising Tortious Battery to Redress Unauthorised Vaginal Examinations

Unauthorised vaginal examinations (‘UVEs’) represent one manifestation of a broad spectrum of abusive practices conceptually and epistemically recognised as obstetric violence. UVEs are particularly invasive, constituting a grave bodily violation imbued with pernicious underlying social, political and sexual dynamics. It is therefore unsurprising that such examinations have the capacity to inflict a range of harms upon women and birthing people, necessitating legal redress.

In exploring potential avenues which could be utilised to redress UVEs, the criminal law and human rights frameworks have enjoyed some consideration, whilst comparatively, litigation under the tort framework has received more limited scrutiny. However, academics have highlighted the potential of bringing an action against UVEs under civil battery. Civil battery merely requires perpetration of intentional unauthorised contact and there need not be an intention to cause harm. These requisites are vital in the specific context in which this form of violence occurs as it can be assumed the majority of healthcare professionals may not intend to cause harm when they perform UVEs.

Additionally, civil battery’s status as a per se liability tort offers invaluable benefit given that there is no requirement to demonstrate psychological or physical harm, by contrast to the stringent requirements of a negligence claim. As a litigatory device then, battery uniquely communicates the inviolability of women and birthing person’s bodies, vindicating violation as a wrong in and of itself whilst rendering strict categorisations of clinically recognised injury irrelevant. For women seeking redress, this may offer important cathartic relief, which, buttressed by the wider tortious objectives of compensation, accountability and deterrence, may enhance the normative potential of the action on the individual and societal level.

However, despite the aforementioned virtues of battery, the disadvantages of the action are glaring. There are immeasurable differences between vaginal touching and the penetration involved in a UVE (and the lived experience of persons subject to them) and more general instances of unauthorised contact. Battery therefore threatens trivialisation of the harms that women and birthing people suffer. Additionally, battery adopts an approach to intention that poses a risk of inviting a narrative of practitioner benevolence in the absence of intention to harm. Such narratives preserve an underlying bias in favour of the medical profession, and may exert normative influence on judicial responses to forced obstetric intervention despite the diminution of paternalism and affirmations of the inviolability of women’s and birthing people’s bodies within legal discourse.

Furthermore, notwithstanding the value of actionable per se liability status, the tort fails to articulate the gravity of the harm, significantly compromising the expressive capacity of the action. Consequently, compensatory awards are likely to be meagre. Beyond the immediate practical disadvantages however, the wider shortcomings of tort as a framework for utilisation in the context of obstetric violence are also damning. The individualistic framing of tort litigation obscures the structural dimension of this form of violence. Additionally, despite its supposed gender neutrality, tort law, according to feminist scholars such as Joanne Conaghan, was designed to provide redress for the male subject and for harms comprehensible to him. Thus, the capacity of tort to provide justice for women and birthing people, and to engender an understanding of harm, violence and of the wrongs inherent in UVEs in light of gender dimensions is bounded.

Conclusively, whilst an action in civil battery is theoretically available, the practical utility of the action and the wider suitability of the tort framework for addressing obstetric violence presents significant grounds for contestation, and posits the question of the expressive limits of tort law for addressing gender-based harms.

Olivia Verity, MJur Candidate, Durham University