איזה מין פיצוי? פגיעה בתפקוד מיני והזכות למיניות בדיני הנזיקין

In 2006 the Israeli Supreme Court handed its renowned ruling in the matter of Ploni v.Migdal Insurance Company (2006). The ruling, written by Justice Rivlin, stated that compensation for loss of sexual functioning in the form of financing expenses related to sexual services contradicts public policy and does not fit with the principle of Restitutioad integrum. Our study highlights additional aspects of the ruling, focusing on its central role in shaping the realm of compensation for harm to sexual functioning. Ploniv. Migdal was the first Supreme Court ruling that addressed the question of awarding damages for loss of sexual functioning following an injurious event, which we identify as sex damages. The ruling provided theoretical and normative justifications for such compensation and presented the remedial avenues for plaintiffs: compensations loss of sexual enjoyment, sexual services, medical treatment and sexual rehabilitation. This study empirically examines the role of Ploni v. Migdal in the doctrinal developments concerning harm to sexual functioning and critically analyzes the changing meanings of sexuality and disability in personal injury law in Israel. We performed a quantitative and qualitative content analysis of district court personal injury rulings over a period of30 years (between 1991 and 2020), including all cases that addressed the question of harm to the plaintiff’s sexual functioning. Our analysis underscores the importance of Ploni v. Migdal in shaping sex damages in Israel and shows how prevailing social and cultural perceptions of disability and sexuality manifest in sex damages compensation patterns. We found that the Migdal ruling marked a shift from compensation for loss of sexual enjoyment and sexual services, that expressed tragic perceptions regarding disability and sexuality, to compensation for medical treatment and sexual rehabilitation, characterized by a dynamic rehabilitative view of sexual functioning. In addition, we found that changes in Israeli healthcare policy regarding coverage for sexual treatments also impact the changing patterns of sex damages. Finally, our study calls for realizing the potential of the Migdal decision through further conceptualization of a legal right to sexuality that can serve as a justification for the awarding of sex damages.