Sex and Contracts
Trigger Warning: I will be discussing rape and some things here that I will say sound like I will be uestioning our common judgment about the wrongness of rape. Inevitably if I think that our common judgments should not be taken for granted and my attention turns to rape, my Y chromosome has never prevented me from asking stupid questions
If sex is no different than any other kind of activity, why are sexual contracts unenforceable?
Ok, so this is mostly aimed at the more progressive among us since conservatives have a simple out: sex really is different in important ways and thus pornography and prostitution are not simply matters left to consenting adults but can be legitimately regulated.
But Progressives and Libertarians presumably don’t have that option. Sure, enforcing a sexual contract against a person’s will is going to involve rape, but why is that any worse than, for example, making a person paint the house he was contracted to paint?*
About the only option, then, is that there are multiple dimensions along which we can compare sexual and non-sexual activity. Along the dimensions that pertain to regulation, sexual activity like many other kinds, is relevantly similar that it should not be regulated so long as all parties are consenting adults. Along dimensions that pertain to enforceability of contracts, sexual activity is relevantly different such that sexual contracts aren’t enforceable.
So, here are some questions for the league:
1) What are those dimensions?
2) Would those pertaining to enforceability of contracts have anything to do with why slave contracts are unenforceable?
Of course any answer you give to 1. cannot be so ad-hoc as to be jury rigged to yield our intuitions. They must have an independent plausibility in their own right. This leads to:
3. Can the reasons you give be reconcilled with reasoning in a pluralistic society?
i.e. 3a) are these reasons accessible to diverse others given their existing commitments and beliefs?
Or
3b) can it be shown that different people whatever their commitments and beliefs will reasonably infer that sexual contracts are both unenforceable and that sexual activity between consenting adults should not be interfered with.
*I’m presuming that the latter is not obviously wrong. Contracts routinely require that the party who has agreed to perform the task make good.
I think the progressives’ and liberals’ out is that they think that all kinds of different things are different (and some special), and have all kinds of different views on how contracts in various goods and services should be enforced.
Conservatives may think that too, or maybe they only think sex is different, I’m not sure. But I don’t think liberals don’t think sex is different; they just think lots of things are different.Report
If lots of things are different then what is the justification for treating some things the same and other things differently.Report
Many things are similar.Report
More to the point, I just think you’re mistaken in thinking that liberals don’t think that sex is different. They do, and they think it can be regulated as such. But it doesn’t follow that they support any given regulation of sex; it only follows that their argument shouldn’t be that “We’re against that regulation of sex because we think that sex should be treated exactly like everything else!” And from what I’ve seen, it doesn’t tend to be.Report
I think this assumption is where your line of reasoning falls down Murali. Specific performance is rarely awarded is labour contracts, monetary damages are much more common. There’s no reason why a prostitution contract can’t be enforceable, but breach is remedied by damages, rather than specific performance.Report
Or, if you’re in Texas, by shooting and killing her.Report
Is your photo selected to maximize the pithiness of your comments? Your facial expression in the photo is really perfect for your prefered type of commentary.Report
The guy in the picture is not Schilling. He is a player for the San Francisco Giants who wore that shirt in their ticker-tape parade when they won the world series. It is a comment on the xenophobia of the illegal immigration crowd.Report
Their closer Sergio Romo, to be precise.Report
I know enough about Baseball and SF to know who he is. But I am still not much of a sports fan so is name escaped meReport
But would the expansion of the scope of specific performance to cover more cases (Except sexual contracts) be unobjectionable to most people?Report
I don’t know about most people, but you asked about how this all ties in to the enforceability of slave contracts, and my feeling is that the disfavoring of specific performance is related to that. Forced labor, even if it’s the specific performance of labor that was previously contracted to, is not permissible.Report
That’s my thinking too.Report
Yeah, you guys are thinking what I was. You can’t force me to paint the house against my will, that’s enslavement; but you can damned sure demand I pay back the money that you paid me to paint it.
Let’s even go worst case scenario and further assume that the agreed-upon contract is not as you say it was, yet you win damages from me anyway through deception and skullduggery, and I must pay you $500 that I never actually received – in this instance, you have robbed me, and that’s bad.
But still not as bad as if you captured me and compelled me to paint the house, which is pretty much kidnapping.Report
I should have read the comments first. I see the folks here nailed exactly my thinking.Report
It is objectionable.
To compel anyone to a sex act is rape. Period. I can’t work out if this post is a horrible joke or if you’re serious.Report
BlaiseP is the winner. This is the prefect reason why you can’t enforce sexual contracts. Any attempt to enforce them is the crime of rape and there are no exceptions.Report
Right. I suspect if Murali were to explore the reasons why rape is a crime, he would find his answer.Report
Not necessarily. Specific performance, as noted above, is objectionable in all labor contracts, and in the case of sexual contracts it amounts to rape. But why shouldn’t a prostitute who reneges on a contract be liable for monetary damages?Report
Specific performance is problematic because it’s difficult to enforce while still allowing for the possibility that circumstances may have changed in a way that makes specific performance unreasonably costly or impossible.Report
Great point, BB. If the person you hire to paint your house falls off a ladder and is paralyzed, it’d take a really disturbed person to demand that he still paint the house.Report
Murali,
forced labor is fucking stupid.
You really think your contractor is going to do a good job then?
(this is why monetary damages are awarded. they’re simpler and easier to value than work)Report
There’s also a practical reason we don’t require specific performance–the likelihood that the disgruntled party will do a purposely lousy job.
“So sorry there’s paint drips on your windows and I didn’t bother to do a neat edge on the trim. What are you going to do, sue me again? Is it really worth your time and money?”
Likewise, or perhaps particularly so, specific performance in a sex contract is unlikely to lead to satisfactory performance.
But enforcing through financial compensation? Sure, why not?Report
To me this points up the reason why some people might think that sex contracts would be different.
Ultimately, damage judgements will be enforced by coercive means of some kind – I suppose ultimately garnishment of wages (I think? Is that the last resort that the civil justice system currently goes to to recover damages? I’m happy not to be in a position to be sure about that.)
In any case, I think the intuition goes like this: how would we feel about a guy having his wages garnished for failing to paint a house for which he took money to do? Not too bad, right? I mean, he didn;t paint the house.
How would we feel about a young woman having her wages garnished for failing to have sex with someone she’d agreed to have sex with and to money from to do it?
I really don’t know. But it pretty much needs to be materially the same as how we feel about the guy who didn’t paint the house in order for a claim that sex isn’t different to stand up. I think it’s not just conservatives who would feel differently about each person’s wage garnishment, and I actually think that the group of people who actually would feel the same about each situation, if we could get everyone to really be honest about their feelings in the matter, would actually turn out to be surprisingly evenly distributed across most political viewpoints (though likely not feeling that they’re the same would probably be most common among social conservatives).Report
This is to say nothing about the difficulty of enforcing a judgment against a sex worker. It’s not like they typically get W-2s.Report
Save your receipts, people.Report
“Tigger Warning:”
There wasn’t anything in this post about Tigger at all. 🙁Report
Sorry, fixedReport
I demand specific performance. Add some Tigger stories, or you’ll be hearing from my lawyer.Report
There’s also “uestioning” and “uneforceable”, which might mean you have a crumb or seed moving around under your key caps, a common and irritating occurrence. There’s also “reconcilled” with two L’s instead of one, but other than that my Opera browser’s built in spell check is clean. (Opera’s checker is fairly decent and underlines misspelled words in red as you type. I cut and pasted your post into the comment box to double check it for you.)
You can go ahead and delete this comment.Report
no need, I’ll correct my typos.Report
You may as well ask: why are contracts to sell yourself into slavery unenforceable? After all, it’s just a contract, right?Report
The Orthodox Jews grant a get divorce to sexually-incompatible partners.
Sex ought not be compelled any more than an erection can be compelled. Where sex is compelled or a person is not a willing partner to that sex act, it is rape. Whores might submit to a sex act in exchange for compensation, people might marry money in exchange for sex — but this doesn’t change the nature of sex or will, either one. An attempt to compel sex can only be construed as duress.
A child cannot be made to enter into a binding contract with his parents: undue influence. A contract cannot be made under duress. Getting someone to sign a contract is the easy part. Enforcing that contract is another matter entirely.Report
There’s an assumption this post makes about contract law. This assumption is false, and correcting it would remove the seeming disparity between sex and other kinds of contracts.
The assumption is that courts enforce contracts by requiring performance. This is almost never the case, and when it happens it usually involves real estate, not personal services. (Because in the English common law tradition from whence American law derives, land is just special. Because reasons, and history.)
I think a good analogy is with employment contracts. If you have an employment contract with your company, saying you will work for them for X years and they will compensate you Y amount, and you break this contract by quitting before X years have passed, no American court will mandate that you continue to work for your former, contractual employer. Rather, you will have to pay the damages (in dollars) that your quitting caused your employer; the amount spent to advertise, hire, and train your replacement, for example. The reason for this is, as you suggest, related to slavery and its complete unacceptability to our modern legal system, but this is true whether or not the labor in question involves sex. If the employee were a prostitute and prostitution were legal, for example, the damages involved in breaking a contract to have sex with a client would be the cost to that person of finding a substitute sex worker and paying his or her fee. The reason this doesn’t happen currently is not that sex is different from other work, period, but that “sex is different from other work” in the eyes of some people, and therefore illegal to contract to do, and therefore different from lawful employment. You can’t get courts to enforce a contract between a hitman and his clients either, for the same reason.
tl;dr – your analogy with house painting is not relevant, because the court would not actually make the painter paint the house; it would make him/her pay the cost of hiring a different painter.Report
Great comment.
Only thing I’d point out is that Murali’s initial formulation of the question: “If sex is no different than any other kind of activity, why are sexual contracts unenforceable?” actually didn’t rely on an assumption that such enforcement would involve compelled specific performance. And it remains the case that at least some sexual contracts are not enforceable, even via damages, the way a lot of contracts (but not contracts in murder, another “different” thing, though in fairness not one that is voluntary on the part of all parties, though to be sure on the part of all parties to the contract) are. Murali added the understanding of specific performance in an attempt to understand why some sexual contracts aren’t enforceable, and, as you point out, that confused the discussion more.
But in fact, also as you point out, some sexual contracts are unenforceable because some people, not an insignificant number, do regard sex as different. I contend that a number of those people are liberals and that they’re not all conservatives.Report
How would you determine damages in a sex contract? I guess the person breaking the contract would have to give the money back or pay the cost of dinner or something but in most cases the amount of money paid is going to be on the small claims level. Going to court to seek damages is going to cost much more in legal fees, if your representing yourself pro se, than what you actually paid.Report
Very strong evidence, if not the best available evidence, of fair market value is the price actually negotiated between two consenting parties. So if we were to allow consent to sex to be sold in exchange for money, the presumptive remedy would be a refund.Report
A refund. Sounds so easy. So if it’s a dinner date, all she’s got to do is give him his dinner back to avoid being date raped?
/sick humor, please forgive, but this post is disgusting on so many levels. The most basic of them is some underlying assumption (I hold, anyway) that it’s women who are supposed to be under contract to put out; men who’d be collecting, because if he doesn’t want to put out, he can’t, right?
Which brings me to this: What if it’s a him that backs out? Is the person holding his contract within his/her rights to rape him? Give him a little blue pill to force his satisfactory performance? And what constitutes satisfactory performance? His ejaculation? Her multiple? Conception?Report
Give his dinner back. Preferably forcibly. If he chokes, so much the better.
(sorry, your humor has put me in an odd mood. I generally do not condone murder)Report
“A refund. Sounds so easy. So if it’s a dinner date, all she’s got to do is give him his dinner back to avoid being date raped? ”
With the implication that if she doesn’t give a refund, she’s agreed to the (implied) contract………Report
A good set of questions that I don’t know how to answer. I would question though how often there actually is anything like a contract.
Let’s take your illustration, in reality very few men say something like “Eating the dinner I’m paying for is a binding contract to have sex with me”, they may expect sex and the woman may not. Absent an explicit agreement It is not at all clear how “I thought you would A if I B but never bothered to confirm that with you” could be an enforceable contract.Report
Murali: “If sex is no different than any other kind of activity, why are sexual contracts uneforceable?”
I’m being harsh here, but there are a number of things where somebody says ‘If A then why not B?’, where just asking that question marks the person as bad.Report
Your courageous enforcement of a near-universally observed taboo merely increases my already tremendous admiration for you.Report
Thank you. Perhaps I should clarify – Murali, what productive thing were you trying to accomplish with your question? I’m assuming that this is not a philosophy class, where things like that would quite reasonable.Report
“Why did you do this completely unreasonable thing? I’m assuming you didn’t do it for a reason I’d accept.”Report
Keep in mind that Murali is a philosophy student and a lot of his posts are composed as if in a philosophy class.Report
Up until the 1970’s, a marriage contract was a sexual contract; a husband could rape his wife without facing criminal charges, based on the presumption that a woman’s rights were subsumed by her husband’s rights.
I would think the progress away from this sorry state of affairs a real sign of progress.Report
When anyone goes looking for Bright Lines for a given society, look to how they treat women in law. I would add children, strangers, the mentally ill and the unconvicted prisoner to that list but the rights of women are the brightest of all Bright Lines, easiest to find in the spectrum of justice.Report
Excellent point (not original, but it always bears repeating).Report
Murali: “Ok, so this is mostly aimed at the more progressive among us since conservatives have a simple out: sex really is different in important ways and thus pornography and prostitution are not simply matters left to consenting adults but can be legitimately regulated.
But Progressives and Libertarians presumably don’t have that option. ”
Actually, we do.
“Sure, enforcing a sexual contract against a person’s will is going to involve rape, but why is that any worse than, for example, making a person paint the house he was contracted to paint?*”
It’s rape.Report
But do we make the guy paint the house? Or do we say he has to paint the house or return any payment he received for painting the house and/or pay damages?Report
As others have pointed out specific performance is rarely enforceable in contracts. And by rarely enforceable, we are operating at unicorn levels here. Specific Performance might be applicable in situations for something that is not exchangeable. Example, a one of a kind painting by a famous artist or an employment contract for a star actor like Cate Blanchett or Tom Hanks. There are other famous actors but there is only one Tom Hanks and one Cate Blanchett.
For the house painter, if he breached the contract and did not perform, we would make him pay damages. In the case of a contract it would be whatever it cost to get a replacement painter plus other reasonable expenses. These are usually called Expectation Damages.
The purpose of contract law (as opposed to tort law) is not to punish or be punitive. The purpose of contract law is to encourage people to enter into contracts. People would be unlikely to enter into contracts if they knew specific performance or serious punishments for breach were a possibility. Or that the court would enforce contracts made under durressReport
And people do naturally still enter into contracts that any sane court would render null and void. (generally using alternate means of enforcement, be they mediation… or guns).Report
Even in the case of the actors, despite their being one-of-kind, as Prof. Aitch points out above, of how much value is a Tom Hanks who doesn’t actually want to be on a particular moviemaker’s set to said moviemaker, really?Report
Everyone pretty much answered why this is wrong here.
Is this supposed to be a post representing performance art libertarianism?Report
Murali is playing with an idea. He’s neither advocating rape nor legalization of prostitution, which is a somewhat different topic than this. It’s fair game to play with ideas.
I see that Murali has worked significantly towards the reason why specific performance is not a favored remedy. Maybe he didn’t get all the way there because of a posture aimed at being as open-minded as possible about the subject of inquiry. A good show for someone who hasn’t been to law school and had The Answer dictated to him by a professor and a panel of judges.Report
Perhaps and I think Murali is generally a good fellow even though like with Roger, we see things very differently. And the warning preference was fair
But I could swear this has come up as an issue for the more cartoonish examples of libertarianism before in other internet circles (not here) and they meant it sincerely.Report
Read the post ‘Fuck me or you’re fired!’ over on Crooked Timber. A poster tried to come up with a work situation where not even libertarians would support it. He failed.Report
how about fuck me or I ruin your life, and your families, and you never work in any town again?
[aren’t… “hypotheticals” … fun?]
Barry, putting prepubescent kids into the equation is a good way to get libertarians against anything.Report
What a gross mischaracterization of that post and the associated comments. Really it was more like a bunch of left-liberals sitting around saying, “Yeah, that’s what libertarians WOULD say, if any of them were around! You tell em… If any of them happen to be around!”
The real answer stems from Hayek’s theory of law: All contract law, and all law in general, rests on a foundation of typically implicit norms. Violate those norms, and a contract becomes a travesty. Law is the process of making those implicit norms explicit, to some limited extent. The norm holding “demanding sex as part of work is different from demanding occasional extra paperwork” has been there all the time, implicitly. If it ever becomes more than an academic question, a body of law will very definitely arise to address it. In the meantime, you have proven nothing whatsoever about any supposed hidden evil lurking in the heart of contract law.Report
… an academic question.
Sometimes, you are hilarious.
I hope it is intentional.Report
I’d ask you to cite any court cases, ever, in which it is alleged by a defendant that sexual favors were an implicit part of contract law. But I know your track record on supplying citations.Report
I don’t think the Sanhedrin still meets, these days.
And their recordkeeping was rather poor at that.
In so far as marriages are contracts… well…Report
In marriage, the provision was quite explicit and known to all. Not that it was good, but at least no one was deceived about it.Report
Jason,
She can barely comprehend the commenting policy let alone legal opinions.Report
meshuggeneh. You try reading them in hebrew.Report
Four comments:
1) This new website doesn’t preserve names and e-mail address; it’s really, really bad.
2) Murali is a philosophy guy, so you can’t blame him on us liberals – he’s your guy.
3) In terms of “it was more like a bunch of left-liberals sitting around saying, “Yeah, that’s what libertarians WOULD say, if any of them were around! You tell em… If any of them happen to be around!””
go to Crooked Timber and read ‘Fuck me or your fired!’. The poster strove for a situation in which even libertarians would say that workplace exploitation took place, and failed.
4) Please be careful with ‘The real answer stems from Hayek’s theory of law:’.
5) After the recent kerfuffle which showed that (a) Hayek luved himself some Pinochet and (b) Hayekians/libertarians were frequently onboard with achieving freedom through torture and mass murder, accusing liberals of parodying libertarians no longer works.Report
I still disagree with your characterization of the post and the associated comments. The libertarian contingent was conspicuously absent in the comments, so nothing of the sort you claim was proven.
I agree with you that Hayek screwed up royally when he endorsed Pinochet. He should have done no such thing. (I am also inclined to forgive much of a man in his late 70s and early 80s; word is his later books were not shall we say entirely his as it was.)
Can we talk about legal theories now, or not?Report
Eh, if it were performance art, I’d expect it to have wondered whether liberals would think that it’s okay for a sex worker to say something like “Irish Need Not Apply” and why it’s okay for a sex worker to say that but not a guy hiring for a British Pub.
And, if I were doing it, I’d have the big finish be some variant of “you didn’t build that”.
As such, I just see this as Murali asking a philosophical question, philosophically, without being American and, thus, without knowing exactly how perilous the minefield he’s walking across happens to be.Report
To be fair, I was part of another internet community and had a reputation for asking variants of mindfield questions. This caused about half the community to develop a deep appreciation and liking for me and the other half to develop a very condescending attitude towards me.Report
The Freudian slip of mindfield was unintended.Report
I can’t tell if you’re making some joke or serious, but, sex work, if legal, should not be subject to various anti-discrimination rules, exactly because it _is_ a performing art.
Yes, it’s generally an _amateurly-done_ performing arts, but, for example, the fact that a lot of amateurs dance doesn’t mean dance isn’t a performing art. Neither does the fact it’s done between one professional and one amateur mean it isn’t an art…that’s just called ‘audience participation’.
In fact, I would argue that ‘sex’ is literally is a form of ‘dance’, by most accepted definitions of the term ‘dance’. It’s audience participation dance. Definitions of dance often explicitly mention ‘social mores’ as being the limit of what dance is, precisely so sex _isn’t_ in that category. But just attempting to define it out of ‘dance’ doesn’t mean it actually isn’t dance. It really really is.
And, of course, there’s also porn, which is representing one form of art (sex, aka dance) in another form (video narrative).
So, anyway, in conclusion, in a version of the US where prostitution was legal, anti-discrimination laws do not apply as it’s a performing art, and hence it is entirely legal to refuse to hire a sex worker on the basis of their race or sex.(1) Just like it’s legal for a TV show to only consider a white man for the certain part. (They couldn’t discriminant against the Irish, though…just people who had an Irish accent they couldn’t get rid of.)
1) Technically, you can probably discriminate on the basis of ‘sex’ anyway, as having the correct genitalia would be a legitimate requirement for many jobs. You couldn’t refuse to hire someone one the grounds they were a woman or a man, but you could refuse to hire them if they lacked a penis or vagina…I think. Actually, come to think of it, you might have to make accommodations, considering how easy that would be.Report
Dates are not sexual contracts because there is no evidence of a meeting of the minds (ah, Contracts class — its been over 20 years). A contract exists when the parties agree on the key terms. Unless the woman agrees in advance to put out in return for dinner, there’s no contract, just a negotiation.
Sex contracts are prostitution – money for sex. As a good liberal, I’m perfectly willing to decriminalize prostitution. As to enforcing its terms, the parties can be restored to the status quo ante by requiring that the recipient of funds return the funds to the payor. I see no reason to change the general law on the performance of personal services contracts — ie, specific performance is not available. Even if the payor could show that the performer were uniquely qualified — the Anthony Hopkins of prostitutes — the invasiveness of the performance of the contract into the personal liberties of the performer means that no court would order specific performance.
This was trolling, right?Report
I think this whole thing is built on a flawed premise — or rather a conflation of ‘illegal’ and ‘unenforceable’.
1) Sexual contracts are enforceable just like any other contract (as noted) — by refund of money or by damages paid. Not by forced labor.
2) Sexual contracts are illegal
So, in short — were sexual contracts legal, breach of contract could be handled like any other contract. Except we don’t allow sexual contracts, except in Nevada. A tiny area of Nevada. (I wonder if there’s any court cases arising from there. Surely there have been lawsuits).
A better question would be “Why are they illegal” — why is this form of labor unacceptable? Their “unenforceable” nature stems entirely because the law will not enforce a contract it deems invalid on the face of it, not because the legal system is unable to enforce it. It chooses not to.Report
Did the comments disappear from the earlier this morning? More tests into the New siteReport
I think there is a logical fallacy in the premise: You can’t force someone to actually paint your house, even if there is a contract that says so, even if you’ve already paid them.
You can force them to pay damages (for the house being unpainted), you can force them to repay you with interest, but I don’t think you can find a judge who will actually force them to wield a brush to actually paint your house by hand.
That said, a prostitute can be forced to repay you if they don’t offer the service agreed to, maybe even to pay damages for not actually performing said service.
And I’d be very interested to hear what sort of damages money half-an-hour of missed sex is worth.Report
In Texas, it’s worth a woman’s life. I would say ‘or three head of cattle’, but it’s probably not that much under Texas law.Report
Yes, the comments got trashed with the downgrade.
OTOH, the new format is incredibly hard to use.Report
Thanks everyone for the comments. I realise that specific performance is more broadly problematic so, in a way my questions were answered. But my post was trying to get at something I perhaps did not articulate adequately.
If Mike Drew is right and sex is different, in what way is it different? What I’m really trying to do here is crowdsource a progressive account of sex. Let me borrow Jason Kuznicki’s example:
“The real answer stems from Hayek’s theory of law: All contract law, and all law in general, rests on a foundation of typically implicit norms. Violate those norms, and a contract becomes a travesty. Law is the process of making those implicit norms explicit, to some limited extent. The norm holding “demanding sex as part of work is different from demanding occasional extra paperwork””
So, let’s leave aside the enforceability of contracts and ask why is sex different from extra paperwork? What is the general rule which makes demanding extra paperwork not necessarily unreasonable but demanding sex intuitively heinous. Is it merely conventional? i.e. is it merely because we as a society happen to treat it that way?
I’m not much of a Hayekian so I’m not going to take such a rule as given. So, what is the rationale for such an rule? Presumably there is some more general principle that covers this. What is this more general principle?Report
Murali,
I don’t know if it is accessible and, if so, how to get at it, but some of this came up when I asked a question about how people would respond to their children taking a magic contraceptive that offered 100% guarantee against pregnancy and STDs. Many people maintained that they would still discourage a sexually active lifestyle for teenage children because there is something unique about sex.Report
and i’d strongly take the opposite approach.
Liberals — we got ideas. 😉Report
Yeah, but what is unique about sex? Just saying that there is something different is so whishy washy, which may be fine when raising your own kids, but seems thoroughly inadequate when we are talking about a reasonable basis for public coercion.Report
Murali,
That’s why I hope I/you/we can dig up the post. People articulated some really interesting and compelling reasons why it was different. I didn’t offer them here because I couldn’t do them justice.Report
Here is the post.
From what I got from the comments, people were either okay with it or were worried about maturity. There was some stuff about sex and relationships but I didn’t catch anything about why sex is different or in which ways they are.Report
I’m emphatically pro-p0rn.
I’m not certain where I stand WRT prostitution,
and am willing to evaluate it on a case by case basis…
Other than that, what public coercion are we talking about?Report
Unwanted touching of any sort is assault, is it not? Can I make a legally enforceable contract with someone that requires me to let them kick me in the gut for 50 times?Report
Only if you’re paying them, I think.
Being a dominatrix is legal, right?Report
I think so. Though if that killed me it would be assisted suicide which is only legal in Belgium and Netherlands. But certainly in principle I could hire someone to slap me around a bit so long as everything is kept safe and sane.Report
Maybe. Depends a little bit on the context. You can, for instance, enter into a contract to be a sparring partner for a boxer or MMA fighter. I pay you, you let me whale on you in the ring (or octagon, as the case may be). The thing is, you have consented to the physical contact. That I have paid you for your consent, which you would have withheld absent the money, does not obviate the reality of that consent being given. And at least in the context of the athletic training scenario, the implication of assumption of risk and the context of why physical contact is taking place is clear.
So too goes the argument about why prostitution is not rape. If we eliminate the prohibition against sex-for-money service contracts, then the consent of the prostitute to the physical contact is real notwithstanding the fact that it was induced by way of money.
But as with all personal service contracts, the remedy for breach would be money, not specific performance, both for the sparring partner or the prostitute. For reasons noted well and exhaustively above.Report
What if I decided that you hit too hard, and chose not to participate in any of the sparring sessions I have contracted to do with you after our first session? Can you compel me to spar with you, or just seek monetary damages if I break the contract?Report
Just monetary damages. There is no specific performance, as covered above.Report
Assume that I’ve conceded the point about specific performance.Report
I’m not really sure where the controversy lies, then. If prostitution were legal, and I think many of us would like to see it legalized*, I’m certain there would be rules related to refunds if services are not rendered, which seems like enforcing contracts, doesn’t it? So the only thing is that you can’t force someone to have sex with you against their will, even if you’ve paid them, which isn’t unique to sex.
*If it should be legalized, it is not because it doesn’t objectify and exploit women, it’s because making it illegal punishes women for being objectified and exploited. Furthermore, by making it part of the black market, we encourage even worse exploitation (to the point of sex slavery).Report
I’m not talking about contracts anymore. I’m using Jason’s example where it is legitimate for a boss to demand extra paperwork but not demand sexReport
Then we’re back to it being assault. If you’ve conceded that we can’t force people to do things that would or could harm them against their will, even if they have contracted to do those things, then it seems like your question has been answered.Report
How is a demand by a boss to do extra paperwork assault? Assume that the worker is equally (un)willing to do either.Report
I don’t recall saying that extra paperwork is assault. I do recall saying that unwanted touching is assault. Unwanted and potentially or actually harmful touching is definitely assault, if assault means anything. So, while it may be OK to compel people to do unwanted work that is not potentially harmful (and even this is not OK if they still refuse — it can result in terminating the contract, of course, but you’re not disputing that), this doesn’t imply that it’s OK to compel them to be assaulted against their consent.
Put differently, if everything is the same as paperwork, our model of the world is seriously impoverished.Report
So there is nothing unreasonable about the demand for sex apart from the worker’s own lack of desire to be touched by the boss?Report
Sex is perfectly fine if it’s consensual. If it’s not, there’s a problem.
Now, in a workplace setting, there are other issues: power imbalances can result in coerced sex, sex that is ostensibly consensual but the person of lower rank doesn’t feel like he or she has an option. This is also a problem with putting sex into an employment contract. Coerced consent isn’t real consent. But I don’t think this is what you’re getting at. I assume you’re speaking more abstractly.Report
I do think that intuitively asking someone for sex from an employee seems a lot worse than asking for paperwork regardless of the willingness or consequences. I’m trying to probe what makes sex different. If sex were not different, we would be treating the various kinds of coercions in the same way. But we don’t. And it seems like a weakness of our moral theorising as a whole that we don’t have a plausible abstract theory about what makes certain kinds of coercions worse than other kinds.Report
Sex is different from paper work for a lot of reasons. For one, sex without consent, or sex with coerced consent, is assault. Extra paper work is not.
But there are further reasons why sex is different from other forms of assault. Social, cultural, and perhaps to some extent innate psychological reasons, along with gender differences in propensity and vulnerability to sexual assault, make sexual assault a different species of assault.Report
Thanks Chris, that is what I was looking forReport
“what is unique about sex?”
Is it really so mysterious?
Isn’t it based on the idea that the human body is itself sacred, and the union of people is a reflection of the union of people and God?
Isn’t this why even nonviolent rape is so abhorrent, why our deepest nightmares involve contamination or violation of our bodies? Isn’t it why we bury our dead instead of hauling them off to the landfill, why we don’t eat human flesh or sell body parts?
What underlies the libertarian desire for self autonomy, if not the idea that control of our person is inviolate?Report
So, what makes is the difference between a boss saying do this extra paper work and a boss saying have sex with me? Assume that the penalties for lack of compliance are the same in both cases.Report
Why do I keep thinking of that old joke-
“Do you know the difference between a blow job and a hamburger?”
“No, what?”
“Lets discuss it over lunch.”
Ultimately the sanctity of the human body is a postulate.Report
I’ve got two replies to this:
1)It is not like one is not using one’s own body to do extra paperwork.
Even if the notion of sanctity of the human body refers to actions that are a lot more intimate
2) How the hell is that a publicly justifiable reason in a pluralistic society? Some people think that the human body is sacred some don’t if yours is the only reason for such a rule then the rule is no better than some other religion based rule.Report
Yes, and some think that fetuses are babies and others don’t; some think kidneys should be sold, others don’t.
Pluralism is too narrow a shield for this sort of argument.Report
No, pluralism is the crux of the problem. If it is oky to oover-ride other’s preferences in order to impose your conception of the good, why is it not okay to over-ride your preferences to impose other people’s conception of the good?Report
Because they are mistaken about what “the good” is and I am not.Report
prove itReport
Looks like we’re out of room when it comes to nested comments.Report
At some point we all have to leave the nest.Report
Murali,
I think even the paperwork example is not quite specific enough, as presumably the paperwork would be related to the job, or at least the functioning of the organization. The sex isn’t. So you might want to ask instead about something else less related to work, and then sex. Like, say, vacuuming the boss’ living room.
Is demanding that an employee (in exchange for, I guess, retention) come over and vacuum your living room different from demanding that shec over and have sex with you? Absolutely, it seems to me. But then, demanding that she come over and vacuum your living room is also different from demanding that she do extra paperwork relating to her job. And demanding that an employee come over and vacuum your living room (in exchange for not getting fired) is also different from offering to someone else, in exchange for vacuuming the living room, the amount of money that the employee would earn in whatever amount of time the employee managed to add to her employment by agreeing to vacuum the room.
This is an illustration of the way that enforcement of contracts differs in different contexts and different subject matter for liberals. The full-time-employment context differs from the pure job-for-hire context in employment law, for example, which affects how employment contracts are enforced in each situation, if I am not mistaken.Report
we can modify the scenario.
Paperwork:
[employee], we’ve got a client coming in tomorrow. I know this is really last minute and because the nature of our client is slightly different, we need to get this paperwork done. I’m sorry, but you’re going to have to work overtime on this. If the client takes us on, you’re getting a raise.
Sex:
[employee] we have a client coming in tomorrow. Remember, we really need this contract so do whatever it takes to get him to sign even if you have to get on your knees to do so.
Both cases are related to the jobReport
Well, it’s related to the job in the same way that it would be related if the boss asked an employee to felate him: doing so adds to a stakeholder’s satisfaction. But unless the service the company is bidding to provide actually is sexual favors, then it’s also unrelated to the job in the same way that the intra-company felatio would be (FTR I’m beginning to get decidedly uncomfortable with this conversation, but am willing to take it as far as necessary to explore the point). IOW, it’s just as much a truism that “every company wants to secure purchasers for its product or service” as it is that “every boss wants to e satisfied by the performance of his employees.” In each case, the felatio is still unrelated to the actual service in question, or payment or arrangement or negotiation (in dollars) for it. Whereas, presumably the paperwork is necessary to some process that’s been deemed necessary to the completion of the transaction (why would someone just decide that extra paperwork relating to the transaction will be completed if it’s not at least thought to be necessarily related to it?).
Again, a different, and again perhaps morally interstitial, comparison suggests itself in this “do what’s necessary to win the contract” scenario. In the first, as you describe it, the boss knows that the potential client’s rep would like to have someone on the staff engage in oral sex with him, and importunes that staff member to oblige. In the second, the boss knows that the potential client’s rep is lonely, likes to bowl, always bowls in the evening while on the road whether he can find company or not, but would always prefer not to go Bowling Alone if he has the choice, so he asks a group (or to keep it consistent, one) employee to go bowling with the rep.
Different? Why?
(At this point I’m going to beg off making the argument for why sexual harassment is sexual harassment, because I have to admit this conversation is beginning to make me a bit angry. People think sex is different because that’s how they encounter it. Things are different. The world is not substrate neutral, and truly general principles actually don’t exist. I’m not going to say that thinking otherwise is an error common among libertarians, but I will say that I have often been inclined to make this point when interacting with libertarians, but always decide against it because it just seems like it’s just going to open a can of worms that by the point in the conversation where I’ve come to focus on that point, I have absolutely no interest in opening. But suffice to say, liberals often get accused of thinking in outcome-based ways that don’t lend themselves to principled justification, and I have always thought that in that accusation is a kernel of the basic difference between them an libertarians: liberals encounter things in the world that are different and thus are inclined to seek different sets of rules for them. As a result, their justifications end up coming out seeming to be inconsistent with each other. But is it so clear that this is in error compared to expecting a consistent set of principles to produce a set of rules that work for basically all substrates? It seems not, to me.)Report
Mike, I think that this is a good reply. That it is sufficient that we experience sex as different that we treat it differently.
Honestly, I’m okay with such an account, but I would be happier if we could say that no society which did not treat sex differently in this way would be stable. Either it would fall apart or become a society which treated sex differently. Or alternatively, if there was some socio-biological reason for it, that too would be great. The we could say that we are the kinds of beings for which sex is constitutively different. Or even, no being for which sex normally was the same as filing papers could ever evolve.Report
Awesome. Good exchange.
I overstated my “anger” at the end there, btw. I just got really uncomfortable having talked myself into a place where the next step was having to reconstruct the wrongness of sexual harassment. I’m pretty good just rolling with the social taboo around that kind of situation that’s reflected in the law and not interrogating it too rigorously, t least publicly. (Which is not to say that I think that taboo is the only reason I feel that sexual harassment is a special kind of wrong.) If you want, perhaps we can follow up by email.Report
I would be happier if we could say that no society which did not treat sex differently in this way would be stable.
I’m not sure precisely what “stable” means here, but it’s pretty easy to find examples of successful societies in history that treated sex differently from how we treat it now in the Western world (I don’t know much about Singapore’s sexual mores, but I assume they’re closer to the U.S.’s than they are to ancient Rome’s). It might be worth exploring the other sorts of things that tend to accompany the treatment of sex, particularly with wives and slaves, as something closer to paper work than we do now, like slavery, and extreme differences in the statuses of men and women. It may turn out that, while society’s can survive with the treatment of sex, particularly women’s sexuality (and perhaps young males), as a commodity, something that can be contracted, or something that can be demanded without consent (at least from certain people), in order to do so they have to adopt attitudes toward individual autonomy and female sexuality that we would find unacceptable.Report
Those societies didn’t last right?Report
Well, I’m operating under the assumption that no society is permanent. It’s true that those society’s didn’t last, but some lasted for centuries. I don’t think it was their treatment of sex that resulted in them not lasting forever, either, though occasionally you’ll hear people argue that it was (though what they’re referring to is different from we are).Report