Sex and Contracts

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Murali

Murali did his undergraduate degree in molecular biology with a minor in biophysics from the National University of Singapore (NUS). He then changed direction and did his Masters in Philosophy also at NUS. Now, he is currently pursuing a PhD in Philosophy at the University of Warwick.

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120 Responses

  1. Avatar Michael Drew says:

    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

    • Avatar Murali in reply to Michael Drew says:

      If lots of things are different then what is the justification for treating some things the same and other things differently.Report

      • Avatar Michael Drew in reply to Murali says:

        Many things are similar.Report

        • Avatar Michael Drew in reply to Michael Drew says:

          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

  2. Avatar James K says:

    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 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

    • Avatar Mike Schilling in reply to James K says:

      Or, if you’re in Texas, by shooting and killing her.Report

    • Avatar Murali in reply to James K says:

      But would the expansion of the scope of specific performance to cover more cases (Except sexual contracts) be unobjectionable to most people?Report

      • Avatar Fnord in reply to Murali says:

        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

        • Avatar James K in reply to Fnord says:

          That’s my thinking too.Report

          • Avatar Glyph in reply to James K says:

            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

      • Avatar BlaiseP in reply to Murali says:

        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

        • Avatar LeeEsq in reply to BlaiseP says:

          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

          • Avatar Chris in reply to LeeEsq says:

            Right. I suspect if Murali were to explore the reasons why rape is a crime, he would find his answer.Report

          • Avatar Sky in reply to LeeEsq says:

            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

      • Avatar Brandon Berg in reply to Murali says:

        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

        • Avatar Kazzy in reply to Brandon Berg says:

          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

      • Avatar Kim in reply to Murali says:

        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

      • Avatar j@m3z Aitch. in reply to Murali says:

        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

  3. Avatar Tod Kelly says:

    “Tigger Warning:”

    There wasn’t anything in this post about Tigger at all. 🙁Report

  4. Avatar Badtux says:

    You may as well ask: why are contracts to sell yourself into slavery unenforceable? After all, it’s just a contract, right?Report

  5. Avatar BlaiseP says:

    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

  6. Avatar Cathy says:

    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

    • Avatar Michael Drew in reply to Cathy says:

      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

      • Avatar LeeEsq in reply to Michael Drew says:

        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

        • Avatar Burt Likko in reply to LeeEsq says:

          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

          • Avatar zic in reply to Burt Likko says:

            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

            • Avatar Kim in reply to zic says:

              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

            • Avatar Barry in reply to zic says:

              “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

  7. Avatar Matty says:

    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

  8. Avatar Barry says:

    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

  9. Avatar zic says:

    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

    • Avatar BlaiseP in reply to zic says:

      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

  10. Avatar Barry says:

    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

  11. Avatar Kazzy says:

    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

    • Avatar NewDealer in reply to Kazzy says:

      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

      • Avatar Kim in reply to NewDealer says:

        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

  12. Avatar NewDealer says:

    Everyone pretty much answered why this is wrong here.

    Is this supposed to be a post representing performance art libertarianism?Report

    • Avatar Burt Likko in reply to NewDealer says:

      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

      • Avatar NewDealer in reply to Burt Likko says:

        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

        • Avatar Barry in reply to NewDealer says:

          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

          • Avatar Kim in reply to Barry says:

            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

          • Avatar Jason Kuznicki in reply to Barry says:

            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

            • Avatar Kim in reply to Jason Kuznicki says:

              … an academic question.
              Sometimes, you are hilarious.
              I hope it is intentional.Report

            • Avatar Barry in reply to Jason Kuznicki says:

              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

              • Avatar Jason Kuznicki in reply to Barry says:

                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

    • Avatar Jaybird in reply to NewDealer says:

      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

      • Avatar NewDealer in reply to Jaybird says:

        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

      • Avatar DavidTC in reply to Jaybird says:

        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

  13. Avatar Francis says:

    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

  14. Avatar Morat20 says:

    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

  15. Avatar TruffautFan says:

    Did the comments disappear from the earlier this morning? More tests into the New siteReport

  16. Avatar JollyOrc says:

    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

  17. Avatar Barry_D says:

    Yes, the comments got trashed with the downgrade.

    OTOH, the new format is incredibly hard to use.Report

  18. Avatar Murali says:

    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

    • Avatar Kazzy in reply to Murali says:

      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

      • Avatar Kim in reply to Kazzy says:

        and i’d strongly take the opposite approach.
        Liberals — we got ideas. 😉Report

      • Avatar Murali in reply to Kazzy says:

        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

        • Avatar Kazzy in reply to Murali says:

          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

          • Avatar Murali in reply to Kazzy says:

            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

        • Avatar Kim in reply to Murali says:

          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

        • Avatar Chris in reply to Murali says:

          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

          • Avatar Kim in reply to Chris says:

            Only if you’re paying them, I think.
            Being a dominatrix is legal, right?Report

          • Avatar Murali in reply to Chris says:

            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

          • Avatar Burt Likko in reply to Chris says:

            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

            • Avatar Chris in reply to Burt Likko says:

              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

              • Avatar Fnord in reply to Chris says:

                Just monetary damages. There is no specific performance, as covered above.Report

              • Avatar Murali in reply to Chris says:

                Assume that I’ve conceded the point about specific performance.Report

              • Avatar Chris in reply to Murali says:

                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

              • Avatar Murali in reply to Chris says:

                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

              • Avatar Chris in reply to Murali says:

                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

              • Avatar Murali in reply to Murali says:

                How is a demand by a boss to do extra paperwork assault? Assume that the worker is equally (un)willing to do either.Report

              • Avatar Chris in reply to Murali says:

                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

              • Avatar Murali in reply to Murali says:

                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

              • Avatar Chris in reply to Murali says:

                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

              • Avatar Murali in reply to Murali says:

                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

              • Avatar Chris in reply to Murali says:

                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

              • Avatar Murali in reply to Murali says:

                Thanks Chris, that is what I was looking forReport

        • Avatar LWA in reply to Murali says:

          “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

          • Avatar Murali in reply to LWA says:

            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

          • Avatar Michael Drew in reply to LWA says:

            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

            • Avatar Murali in reply to Michael Drew says:

              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

              • Avatar Michael Drew in reply to Murali says:

                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

              • Avatar Murali in reply to Michael Drew says:

                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

              • Avatar Michael Drew in reply to Murali says:

                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

              • Avatar Chris in reply to Murali says:

                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

              • Avatar Murali in reply to Chris says:

                Those societies didn’t last right?Report

              • Avatar Chris in reply to Chris says:

                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