Second Department Holds Complaint Alleging “Nonconsensual Insemination” During Consensual Unprotected Intercourse Fails To State A Cause Of Action

In M.P. v. Wilson, 2026 NY Slip Op 01954 (2d Dep’t 2026), the Appellate Division, Second Department, held that the defendant’s alleged “nonconsensual insemination” of the plaintiff during consensual unprotected intercourse failed to state a cause of action for battery or negligence.

The complaint alleged the parties “engaged in consensual unprotected sexual intercourse, during which the defendant allegedly ‘inseminated’ the plaintiff without her consent, resulting in the plaintiff’s ectopic pregnancy, internal bleeding, miscarriage, and salpingectomy.”

The Supreme Court, Nassau County, dismissed the complaint for failure to state a cause of action, and the Second Department affirmed. In a short opinion, the panel reasoned that “[t]he allegations contained in the complaint demonstrate that the plaintiff consented to the bodily contact at issue” and therefore failed to state a cause of action for battery. Regarding negligence, the panel reasoned, “Under the circumstances of this case in which the plaintiff consented to unprotected sexual intercourse with the defendant and did not allege that she withdrew her consent, the defendant did not owe the plaintiff a duty of care.”

M.P.’s complaint is more notable for what it did not allege. The complaint did not allege, for example, that the plaintiff expressly premised her consent upon the defendant’s agreement not to ejaculate inside of her or inseminate her. Instead, it alleged, in effect, that the plaintiff did not also consent to insemination, despite consenting to unprotected intercourse. On these facts, the relevant “bodily contact” for purposes of battery is the unprotected intercourse—to which the plaintiff consented. Likewise, absent an express limitation or subsequent withdrawal of consent, the defendant owed no duty to the plaintiff to avoid ejaculation or insemination.

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