This article originally appeared in The Advocate Daily on April 23, 2019.

A test for the tort of mental distress arising from sexual coercion would help protect women in this developing legal area, Toronto family lawyer Inna Tsinman tells AdvocateDaily.com.

Women in marriages or long-term relationships who face harassment or distress as a result of the economic pressure to perform sexually find themselves in a somewhat unique situation when it comes to how the law views their issues, says Tsinman, principal of Tsinman Law.

It’s why Tsinman and her team are working toward developing a new test, arising from previous ones used in cases of both mental distress and revenge porn.

She says the test can be laid out in three clear steps: economic dependency is established the reliance leads to outrageous conduct ultimately it causes visible and provable illness

For example, Tsinman would like to see the test applied in cases such as a model living abroad who is in a relationship with a very wealthy man who then sponsors her to live in Canada.

“When she’s here, he is extremely controlling financially and demands very rough sex and things that are completely beyond her boundaries,” she says of her baseline example. “The victim feels that because of her circumstances, she has no choice but to comply.”

Women in such situations — typically in some form of long-term relationship — are facing abuse but the link to economic dependency differentiates these cases from other forms of sexual or domestic abuse, leading to the need for a new tort, Tsinman says, adding this economic dependency forms the first leg of the tort.

“The decision this person has to be making is financial,” she says. “’If I don't get married or stay in this relationship and perform sexual favours, certain benefits will be taken away from me.’”

It can be argued that this financial tie in effect vitiates the consent, Tsinman says, raising an important question.

“Can consent only be granted at the beginning of marriage — at the start of a contract — or does it have to be ongoing?” she asks. Although she wishes to argue the latter, she is still building the evidence and precedent to support it.

Another important part of the test is that the economic dependency leaves the person with no realistic alternative, Tsinman says. Although one may argue there is always an alternative for someone in a bad relationship, she says it is vital to recognize how mental distress leads someone to feel trapped.

After the test of economic dependency has been met, Tsinman proposes the situation leads the perpetrator to conduct themselves “outrageously.”

“This may include explicit threats (‘It’s my way, or you’re out’), cutting off access to funds, physical threats under economic coercion, and preventing access to outside support, she says. “This behaviour often leaves the woman feeling humiliated or with lost self-esteem.”

Then, Tsinman says, the victim must demonstrate their mental health has suffered, through either humiliation, depression, reduced self-esteem or anger issues, for example.

Again, it all must draw back to the economic link, she says.

“It’s highly unlikely this woman would enter the relationship without the economic coercion,” Tsinman says.