FELLATIO
A sexual act in which a male places his penis into the mouth of another person.
At COMMON LAW, fellatio was considered a crime against nature. It was classified as a felony and punishable by imprisonment and/or death.
Presently it is a crime in some states, sometimes
punishable as a form of the more encompassing
crime of SODOMY, the act of unnatural sexual
relations between two persons or between a per-
son and an animal.
Under both the common law and presentday statutes, there must be actual insertion of
the male organ into the mouth of another for the crime to be committed. Any penetration,
however slight, is sufficient. Emission is not a necessary element of the offense under most
modern statutes.
If the offense is committed by two persons
who mutually consent to engage in the act, both
are guilty of the offense. If one party is below the
age of consent, only the adult is guilty.
The U.S. Supreme Court has held that the
regulation of unnatural sexual conduct or activ-
ity is within the POLICE POWER of the state. The
penalty for fellatio in many states is a fine,
imprisonment, or both. Some states, however, do
not treat it as an offense. In New York, a penal law
prohibiting consensual sodomy was held uncon-
stitutional by the highest state court on the
grounds that it violated the constitutional rights
of privacy and EQUAL PROTECTION of the law.
Statutory definitions of fellatio may exempt
from prosecution spouses who engage in such
sexual conduct within the confines of their mar-
riage. Fellatio is among several sexual acts that
remain illegal in many jurisdictions, but are
rarely prosecuted when consensual and engaged
in in private.
FELLOW-SERVANT RULE
A common-law rule governing job-related injuries
that prevents employees from recovering damages
from employers if an injury was caused by the
NEGLIGENCE of a coworker.
In the mid-nineteenth century, a rise in industrial accidents brought to U.S. law an Eng-
lish idea about responsibility. The fellow-servant rule said simply, workers who are hurt by a coworker—a fellow servant—should blame the responsible coworker, not their employer. After first appearing in a U.S. decision in 1842, the
rule had a powerful effect on the law for the
next century. Its tough-luck notion of fairness
protected employers and doomed injured
employees, who often had no other hope for
recovering damages after serious accidents. In
allowing employers to invoke the defense,
courts wanted to help the nation’s industries
grow at a time of vast expansion, when the dan-
gerous jobs of factory work and railroad build-
ing needed bodies that could be injured without
repercussions to employers. Only in the early
and mid-1900s did lawmakers undermine the
rule, through passage of federal and state WORKERS’ COMPENSATION laws.
The fellow-servant rule broke from general
common-law principles of liability. Tradition-
ally, courts had treated cases of job-related acci-
dents under TORT LAW (a TORT is a civil wrong
that causes harm to a person or property).
Specifically, these claims came under the tort of
negligence—the failure to do what a reasonable
person would do under the same circumstances.
Certain suits were seen as acceptable. For exam-
ple, if a man named John were injured by a neg-
ligent worker named Bill, and Bill worked for an
employer with whom John had no preexisting
relationship, John could readily sue the
employer for Bill’s negligence. But everything
changed if John and Bill worked for the same
employer; then, the employer could invoke the
fellow-servant rule as his defense, and courts
would dismiss the suit.
The fellow-servant rule first appeared in
1837, in Great Britain, in Priestly v. Fowler (150
Eng. Rep. 1030 [1837]). In that case, an over-
loaded delivery van driven by one employee
overturned and fractured the leg of another
employee. The injured employee’s lawsuit
against their common employer succeeded, but
it was overturned by the Court of Exchequer.
The magistrate, Lord Abinger, scoldingly held
that the injured employee “must have known as
well as his master, and probably better” about
the risks he undertook in van delivery. More-
over, concerns about the public good steeled the magistrate against the plaintiff. If suits such as Fowler were permitted against employers, workers would soon forget about their duty not to hurt themselves.
U.S. law was quick to learn this lesson in
employers’ IMMUNITY to liability.Only five years
later, in 1842, the Supreme Judicial Court of
Massachusetts announced it in the landmark
case Farwell v. Boston & Worcester R.R., 45 Mass.
(4 Met.) 49. The case came during the nation’s
greatest burst of industrial development, as it
transformed from an agrarian society to an
industrial society. Few state judges appreciated
this shift as keenly as the Massachusetts court’s
chief justice, LEMUEL SHAW (1781–1861). Near-
ing the end of a remarkable life in law, Shaw
grasped economic considerations better than
social ones, and his plainspoken opinions were
tremendously influential.
Chief Justice Shaw’s decision in Farwell had
blunt logic. Although a railroad employee had
lost his hand through the negligence of a fellow
worker, Shaw looked beyond the loss of limb to
the dangerous precedent that a finding of
employer liability would pose to growing indus-
tries at a crucial moment in history. He wanted
to encourage this growth. So he imported the
fellow-servant rule, justifying it in purely eco-
nomic terms. Whereas Lord Abinger had
reminded employees of their duty to be cau-
tious, Shaw observed that employee alertness
was also compensated: workers in more danger-
ous jobs would be taken care of by the market,
through higher wages. Furthermore, employees
entered such jobs voluntarily and therefore
chose to put themselves at risk. Thus, a contract
of employment existed, and it could not place
liability on the employer’s shoulders except
when the employer was personally responsi-
ble—and certainly not when a fellow employee
was clearly to blame for the injury.
The reverberations of this decision were felt
throughout the rest of the nineteenth century.
Shaw was not the only judge whose sympathies
lay with industry. As more courts adopted the
fellow-servant rule, the doctrine had a drastic
effect on workers. An 1858 Illinois Supreme
Court decision succinctly echoed Shaw’s reason-
ing: “[E]ach servant, when he engages in a par-
ticular service, calculates the hazards incident to
it, and contracts accordingly. This we see every
day—dangerous service generally receiving
higher compensation than a service unattended
with danger or any considerable risk of life or
limb” (Illinois Central R.R. v. Cox, 21 Ill. 20).
The industrial revolution was not an age of
safety: laborious work, long hours, crude train-
ing, and rough tools led to accidents involving
workers. Injured workers sued their employers
because employers arguably bore some respon-
sibility and always had deeper pockets than fel-
low workers. But employers needed only to
point out that a coworker’s negligence was
partly or wholly the cause of the injury, and the
nation’s courts stood ready to uphold the fellow-
servant rule.
Injured employees could rarely win these suits. A slight hope existed: if an employer was notified of a careless worker’s behavior but failed to take disciplinary or corrective action, the employer became directly liable for mishaps that the careless worker caused. But to prove this in court required testimony. Who would intervene? Worried about losing jobs, few coworkers would testify. Thus, the fellow-servant rule along with two related defenses, contributory negligence and ASSUMPTION OF RISK, came to be dubbed “the three wicked sisters of the common law,” because together they left the burden on the injured and powerless employee (48 Vand. L. Rev. 1107 [May 1995]).
The twentieth century brought change. Even by the early 1900s, the fellow-servant rule had begun to crumble. Courts had new ideas. The mere existence of a rule safeguarding employers’ interests had failed to stop workers from having accidents and bringing compelling cases. To permit certain lawsuits to proceed, courts created exceptions to the fellow-servant defense. Some courts permitted suits where the coworker was a supervisor; others limited the defense to employees working in the same department. As a result, employers could at last be held liable for some on-the-job injuries caused by coworkers.
Through the efforts of the labor movement,
two further reactions against the fellow-servant
rule sapped it of most of its force. The first was
a change in federal law. In 1908, Congress passed
the Federal Employers’ Liability Act (45 U.S.C.A.
§ 51 et seq.), designed to protect railroad
employees. Its protections were extended to
maritime workers with the JONES ACT (46
U.S.C.A. § 688). The major development to
undermine the fellow-servant rule was the pas-
sage of workers’ compensation laws in states,
which ensured that employees would receive
compensation for injury or illness incurred at
work. By 1949, every state had passed workers’
compensation laws.
By the late twentieth century, the fellow-
servant rule was largely dead, although a few
loopholes remained in some occupations, chiefly
farming. At that point, the rule’s rare appearance
in court provoked surprise, as in the 1989 case of
Pomer v. Schoolman, 875 F.2d 1262, 7th Cir.,
which moved federal appellate judge RICHARD A.
POSNER to remark in his opinion, “[I]t is up to
Illinois to plug what to many observers will
seem an anachronistic and even cruel gap in the
