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Sex and Joy: The Legally Protected Benefits of Marriage

January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.

To get the full value of joy
You must have someone to divide it with.
Mark Twain

Marriage is part of the bedrock of our society (although it suffers the occasional tremor). Its bonds tie together not only the fortunes of two people, but also tie together the family unit, integral to the advancement of our country.

For these reasons, and many more, it is valued and protected by the law. Thus when a spouse is physically injured by another party, the non-injured spouse has the right to seek damages related to loss of consortium. This means that the party responsible for the injury is liable to the non-injured spouse for the resulting loss of “society and services.”

What is included in “society and services?”1

For starters, sex! That’s right, spouses have a god given right to enjoy the physical company of their companion. The law recognizes that sex is an important aspect of marriage. Sex not only provides physical pleasure; sex amplifies and protects the emotional bonds of marriage. Sex can also be pretty helpful in reproduction (though I suppose not medically necessary).

“Society and services” is more than just sex. It can also include all manner of activities provided by spouses, such as: the value of a husband as the bug squasher, home cooked meals, a clean house, a nice garden, and perhaps even the value of nagging as a reminder to accomplish household tasks. Most importantly, “society and services” includes “the full value of joy” that can only be acquired by sharing our hopes and fears, our eccentricities and pet peeves, our joys and pains, in short, our souls with another human being. The law, in essence, protects our right to be the happiest we can be.

I was inspired to write this article by the daily phone calls I receive from those suffering injuries as a result of transvaginal mesh and other products. These injuries can, and often do, tear at the fabric of marriage, doing far more damage than the accumulated pain and discomfort resulting from the physical injury. Though money can never replace lost companionship, my sincerest hope is that, if the attorneys at Fleming, Nolen, & Jez do their jobs well, it will ease at least some of the suffering.

1 REST 2d TORTS § 693