SEXUAL AGREEMENTS.

• Author: Antognini, Albertina

ABSTRACT

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution--defined as an exchange of sex for money--has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple's bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself.

A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being "meretricious " or "immoral" and invoke the illegality of prostitution as the reason for this limit, sex not only can form a part of some contracts, it is inherent to the very definition of certain relationships. While courts reject private agreements between spouses regarding sex, they nonetheless deem sex "essential" to the existence of marriage, and they quantify just how much sex matters when considering loss of consortium claims. Moreover, several contemporary developments cast doubt on the proposition that sex, or a perceived similarity to prostitution, must always doom agreements. In the parentage context, for example, legislatures and courts increasingly treat paid surrogacy arrangements as enforceable contracts, rejecting earlier arguments that emphasized the parallels to illegal sex work. Courts have also become more willing to acknowledge parentage agreements that involve sexual conception, and surrogate partner sex therapy and adult entertainment employment have escaped legal sanction. Beyond the incipient recognition of sexual arrangements as legal contracts, contract-based ideas have become salient in contemporary sexual regulation. Modern understandings of crimes like rape and sexual assault emphasize sexual autonomy and make consent and its absence the pivotal considerations, displacing earlier elements of force, resistance, gender, and nonmarriage.

This Article juxtaposes the traditional approach to sexual contracts with the emerging convergence of sex and contract. In so doing, this Article argues that what is frustrating couples' contracts, both in and out of marriage, is neither sex, nor prostitution, but rather marriage itself. Given that sex is not actually differentiating the contracts that courts enforce from those they do not and given the various inequities that result from the current system, this Article ends by considering what it would mean to carry the contractual approach to its logical conclusion by recognizing sex itself as subject to contract.

TABLE OF CONTENTS INTRODUCTION I. SEX CANNOT BE THE BASIS FOR CONTRACT APART FROM MARRIAGE A. Sexual Contracts Outside Marriage B. Sexual Contracts Within Marriage--Or Marriage Is Not "the timely delivery of a crate of oranges" 1. The Marriage Contract Written by the State Makes Sex "Essential" 2. Sex Has Value Within Marriage II. THE CONVERGENCE OF SEX AND CONTRACT A. Gestational Surrogacy: Sex-Adjacent Agreements B. Contracts with Significant Sexual Components: Sex in Contracts 1. Parentage Agreements for Sexually Conceived Children 2. Surrogate Partner Therapy 3. Adult Entertainment C. The Contractual Turn in the Regulation of Sex III. PROSTITUTION AS PROXY A. Marriage Is Doing the Work that Courts Ascribe to Prostitution Bans B. Exposing Connections Between Prostitution and Marriage IV. SUBJECTING SEX TO CONTRACT: COMPLICATIONS AND CONSEQUENCES A. Consent's Limits and Sexual Trades B. Severing Sex C. Mistaken or Withdrawn Consent D. Remedies CONCLUSION INTRODUCTION

A recent conversation simmering in the academy and the popular press alike asks whether fairness requires not only the redistribution of wealth but also, provocatively, the redistribution of sex. (1) Such head turning and hypothetical inquiries divert attention from a more fundamental and real world question about sex, wealth, and fairness: Whether the ordinary rules of redistribution spelled out by contract law should govern agreements that include a sexual component. (2) Case law says no, refusing to recognize as contracts agreements that entail sex in both nonmarital and marital relationships. We challenge the logic of these cases, the fairness of their outcomes, and their consistency with legal developments in other areas. Although our exploration takes us beyond such intimate relationships into domains like surrogacy and adult entertainment and although it certainly has implications for sex work more generally, we center our analysis and our call for change on the prevailing treatment of sex in agreements between nonmarital and marital partners.

It should come as no surprise that ordinary contract rules do not apply to agreements with a sexual component, given that sex is routinely distinguished from comparable human practices and subjected to singular regulation. This "sex exceptionalism" (3) manifests in many legal forms, but criminal laws prohibiting prostitution, defined as an exchange of sexual activity for money, (4) might well provide the paradigmatic illustration. (5)

As numerous commentators have noted, sex exceptionalism often reflects, at bottom, "sex negativity"--a view that sex is so base, dangerous, and morally problematic that the state must work to confine it to narrow, preapproved settings. (6) Even with the contemporary loosening of some traditional strictures, others persist. The criminalization of prostitution again supports our point; it has proven to be both durable and versatile, despite many calls for legalization and regulation. (7) In what could have signaled a shift in the law by according constitutional protection to private consensual LGBTQ sex in Lawrence v. Texas, the Supreme Court made clear that prostitution bans lay outside its holding. (8)

Indeed, sex exceptionalism, sex negativity, and pushback against both present challenges for the language we use throughout this Article. Because we focus on civil cases that use the term "prostitution," we employ that word as those cases do, even though the definition in a criminal statute--which the civil cases rarely quote or cite--might differ. Further, because "prostitution" itself epitomizes sex exceptionalism and sex negativity and communicates gendered denigration, authorities supporting decriminalization and destigmatization favor the less disparaging and often more expansive term "sex work." (9) Despite our preference for abandoning the word "prostitution," our analysis requires us to use it, because it appears in civil cases brought to enforce nonmarital contracts and in some of the scholarly literature. (10)

As this explanation of terminology previews, criminalization of prostitution infiltrates civil litigation. The Restatement First of Contracts invalidated sex for hire agreements, given that their performance would obviously be criminal. (11) In addition, the Restatement First addresses "immoral sex relations," more broadly providing that "[a] bargain in whole or in part for or in consideration of illicit sexual intercourse or of a promise thereof is illegal...." (12) The Restatement Second absorbs these rules into a general invitation for courts to consider public policy so that "[a] promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms." (13) Courts have relied on a combination of these approaches, citing prostitution bans or otherwise rejecting sex as "meretricious" or "illicit" when it forms the basis of an exchange between unmarried partners. (14)

Yet the way sex figures into agreements is more complicated than this blanket bar or mere mention of the crime of prostitution suggests. While contracts cannot provide for sex as a matter of stated doctrine, sex does form an important part of certain agreements, which the law explicitly acknowledges. Sex, for example, has long been recognized as an "essential" of the marital relationship; it also provides a foundation for a spousal loss of consortium claim.

Nonetheless, marriage, along with relationships that include sex outside of marriage, appears to set forth outer limits on the ability to contract. Neither married nor unmarried couples can enter into a contract for sex. Courts often conflate the provision of sex with the provision of domestic services and end up refusing to recognize both; but sex itself provides a distinct basis for invalidating a contract that merits attention. (15) And, unlike the limit on contracting for domestic services, the limit on contracting for sex has largely escaped critical attention. (16) This inattention persists even though the consequences of failing to enforce a contract for sex are similar to those for failing to enforce a contract for domestic services: courts ignore the parties' agreed-to terms of exchange. The cases thus designate sex as a realm in which contract cannot enter, a realm that coincides with the contours of an intimate relationship. Accordingly, not allowing contracts in this context reinforces the divisions between family and market (17) and prevents the individual seeking earned or promised property from accessing it. (18) In other words, sex suspends a distribution of property that contract law would sanction if sex were not part of the bargain.

Certainly, critics could take aim at this state of affairs as just one more example of sex exceptionalism or sex negativity. (19) Alternatively, they could use this line of cases to make a point about how public policy is so indeterminate and so hospitable to value judgments that it easily makes room for sex to foil a contract. (20) But these would only be partial observations. A deeper and more careful interrogation of the cases about sexual agreements between nonmarital and marital partners...