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Albertina Antognini & Susan Frelich Appleton, Sexual Agreements, 99 Wash. L. Rev. 1807 (2022).

This thought-provoking article analyzes the interaction between contract and sex. Seemingly they belong to two utterly different and separate worlds, with no connection between the two. As the authors show, the conventional wisdom is that a contract for sex is unenforceable, whether the parties are married or not. In the case of unmarried couples, the courts refuse to enforce sex for property contracts since that would validate prostitution. Contracts for illicit sexual services are void for violating public policy. In the case of married couples, the courts would not allow the parties to alter the marriage contract written by the state. Sex is essential to marriage, and as the loss of consortium claim proves, sex also has economic value in marriage. This is sex exceptionalism, which means the state prevents the distribution the parties agreed upon in their contract whether in marriage or outside of marriage. Moreover, the authors claim that privileging marriage–and not prostitution–is the reason the courts invalidate non-marital sexual agreements and maintain the marriage-cohabitation hierarchy.

However, the authors claim that in fact the law governing sexual agreements is more complex, and they offer a nuanced description of the law’s treatment of cases where sex is part of the contract. Drawing from paid gestational surrogacy, parentage agreements, surrogate partner therapy and adult entertainment employment as examples they show that the law recognizes these sexual arrangements as legal contracts. Moreover, rape law is based on consent, which means the distinction between lawful and unlawful sex is constructed in a contractual manner. As these examples demonstrate sex and contract are not separate but they coexist and converge.

The article concludes by discussing the benefits of contractual approach to sex. Though it has some disadvantages (such as commodification, perpetuating gender inequalities and maintaining gender biases, and the limited notion of contractual consent) the authors conclude that sexual agreements should be enforceable.

This fascinating article on sexual agreements raises questions about the entanglement of sex, marriage, and contract, as well as profound questions regarding each of these concepts separately.

First, the article questions, What sex is all about? Is it a commodity of economic value? Is it emotional (even prostitution serves emotional, and not only sexual, needs)? Is it part of marriage? Is it separate from other aspects of marriage? Is it part of any loving relationship whether marital or non-marital, and whether between same-sex couples or different-sex couples? It also challenges how sex is gendered in a patriarchal society, and how we might envision what sex would be in a utopian egalitarian world.

Second and relatedly the article questions, What is marriage all about? How is it different from a non-marital committed relationship? How is it different from prostitution? Is it a public institution governed by state regulations or a private institution governed by the parties’ agreement? Is it a status or a contract? And it also challenges how marriage–like sex–is gendered in a patriarchal society, and how we might envision what egalitarian marriage would be like free from gender roles.

Lastly, the article questions, What is contract all about? Is contract restricted to the market and to commercial agreements? Is it applicable to the family? Is it an economic tool to enhance the parties’ welfare or is it about relations? How should the law set the boundaries of contract law? What is included in the world of contract and what is excluded from it? Is consent a workable basis for contract? Is there a difference between consent to sex and consent to contract? What public policy should invalidate contracts? And it also challenges the role of the courts in enforcing contracts, policing property distribution, and maintaining social institutions like marriage.

There is a rich and diverse literature on contracts between family members, challenging the separation between the market and the family. This article takes this issue a step further by focusing on sexual agreements, making an immense contribution to this scholarship. It questions how contract law treats sexual agreements and sexual distribution. It also questions how contract law should be revised in order to enforce sexual agreements and to allocate sex in a just and egalitarian manner.

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Cite as: Orit Gan, What Does Sex Have to do with Contract?, JOTWELL (May 29, 2023) (reviewing Albertina Antognini & Susan Frelich Appleton, Sexual Agreements, 99 Wash. L. Rev. 1807 (2022)), https://contracts.jotwell.com/what-does-sex-have-to-do-with-contract/.