78 Indiana Law Journal 965 (2003)
In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called "special damages" in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting "special damages," even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical that a variety of harms claimed by women were the direct and natural consequences of the offending statement.
In studying what courts viewed to be special damages and therefore worthy of redress in this context, Professor Pruitt's work reveals several insights. First, we learn something of the nature of the reputational interest protected by defamation law. In particular, Professor Pruitt argues that courts viewed these slandered women's reputations as a form of property, and they ignored the dignitary nature of the injury. In addition, these cases provide an opportunity to see another example of the gendered trends in tort law that have been identified by scholars such as Professor Martha Chamallas. Professor Chamallas has argued that tort law values property and economic injury over relational and emotional injury, and that injuries may be judicially characterized as one or the other based upon the gender of the sufferer. Professor Pruitt's analysis points out the presence of these value hierarchies in sexual slander cases, just as Professor Chamallas has established their presence elsewhere in tort law.
Finally, Professor Pruitt argues that sexual slander law was an additional way in which women's sexual propriety was commodified, ultimately to the benefit of their fathers and husbands. She argues that a preferable scheme would have permitted courts more expansive jurisdiction over sexual slander claims, as well as power to provide a more expansive array of remedies. That is, drawing on the remedies of apology and repentance that had been available in English ecclesiastical courts-remedies remarkably similar to retraction and declaratory judgment remedies that are associated with contemporary defamation reform-nineteenth-century courts could have avoided propertizing women's virtue. At the same time, they could have provided appropriate remedies to more of the women who had been injured by sexual slander.
Pruitt, Lisa R.
""On the Chastity of Women All Property in the World Depends" : Injury from Sexual Slander in the Nineteenth Century,"
Indiana Law Journal:
3, Article 2.
Available at: http://www.repository.law.indiana.edu/ilj/vol78/iss3/2