So some people seem to think that sex contracts aren't a good idea. But most things that come out of the great state of California deserve at least a second look - especially since California and its signature industries, I mean entertainment and tech, have been at the forefront of the development of contract law for a good eight decades now.
The first point is that the sex-contract can't be examined in isolation. There is a public health interest even in this private contract between two consenting parties, and since the state of California has never seen a public health interest it didn't exploit to the hilt, it is natural to conclude that this private contract needs to have a public dimension. The interest of the state in stymying the spread of STDs is obvious and frequently invoked - it is not too much of a stretch from there to suggest that the state ought to find some way to mitigate the epidemiological risk.
Taking our cue from Silicon Valley, perhaps a non-compete clause in the contract is the best way to ensure the state's interest. For the duration of the contract and a specified length of time following, each party is contractually obliged to avoid entering a competing contract with a different party. To reduce the public heath risk, a lifetime non-compete agreement is essential.
There are definite economic benefits that can accrue from the fulfilment of the contract (not just the obvious economies stemming from cohabitation, but also the harder to quantify but very real productivity gains associated with the production of oxytocin), alongside the substantial economic substantial risks of pregnancy, etc. Our contract needs to ensure an equitable distribution of both benefits and risks, and since both are impossible to calculate accurately, the best way to proceed is to treat both parties as a single entity for economic and social purposes.
In the interests of transparency, and to acknowledge the public as a stakeholder in the contract, a short waiting period for public comment before finalizing the contract seems reasonable. We can let the legislators work out the particularities of this waiting-period, but at a minimum, three weeks before the contract is agreed the names of the parties should be publicized.
In addition, representatives of the public should be present as witnesses at the actual signing of the contract - this helps mitigate the risk that the consent was obtained under duress - and at the same time, ensures that all the appropriate stake-holders - the state, the public health authorities, the public, and the parties to the contract - are brought on board. It is not inconceivable that the best place for this meeting to take place would be at a place of worship.
I am the first to admit that some of the details of this new scheme still need to be worked out, but Kevin de Leon, along with the whole state of California, deserves a tremendous amount of credit for getting the ball rolling here.
Friday, June 6, 2014
Thursday, June 5, 2014
Solving the Problem of Sexual Assault
It is not often that the state of California arrives at simple, elegant solutions to the very problems the state has engendered. (Its laws severely restricting firearms ownership come to mind. Background checks do not manias dissolve.) But credit where credit is due: this time, to Kevin de Leon, Democratic state senator from Los Angeles. According to LA Weekly,
Since according to the proposed law verbal consent is sufficient, critics need not appeal to the absurdity of written contracts in order to make their point. It would be equally simple to devise a consent-granting iPhone app in which the scanning of proprietary matrix barcode identifications suffices for consent. Better yet, with the looming advent of biometric identification tied to smartphone applications, we could simply allow our smartphones to decide for us whether we consent, based on their evaluation of signals in relevant brain regions.
The current problem of sexual assault revolves around the question of consent -- whether it was granted, and in what manner the granting of consent can be reasonably perceived and understood. The hookup culture to which allegations of sexual assault are usually tied cannot be brought under scrutiny, however. To challenge the hookup culture would be to brush up against the sacred doctrine of consent, according to which everything consented to is good and everything not consented to is bad -- except when done in order to foster better consent. (Various regulations and other state managerial policies designed to improve consent can thus be justified even if they are not consented to, since they are ordered toward further consent in the realm of personal interaction.)
But the doctrine of consent can be restated another way. Every personal interaction consistent with the consent principle, or consistent with the nonaggression principle, is acceptable. Liberalism conditions a society for the maximum level of mutual abuse consistent with the harm principle. Once you wall off physical coercion, everything else is a-OK.
These observations return us to the problem of sexual assault, and how to solve it.
Contrary to the critics of Rep. de Leon, he can only be faulted for not going far enough -- so to speak.
If the state of California requires written consent and release of liability prior to sexual activity, it has simply adopted a practice necessary for the legally regulated, commercial-industrial production of sex, whether through prostitution or through obscene materials.
It would be much simpler for liberal society if all sexual relations, at least all nonreproductive sexual relations, were simply made public according to legal standards -- i.e., made pornographic. Consent would be given first, with a release of liability. No obligations would follow. And since our society fears that events do not exist unless they are photographed, the requirement that all sex be pornographic will ensure that everything everyone does is (as in universal photography) simultaneously meaningful and completely meaningless.
Is this suggestion any more absurd than other stratagems our society has undertaken to remove itself from all human responsibility through the doctrine of consent? If the laws of contract could appear before us, they would surely blush.
When we admit that liberalism arranges a society for maximum mutual abuse consistent with the doctrine of consent, we have unwittingly slipt into the observations of a social thinker whose equations of liberalism with the "authoritarian personality" grow daily, and frightfully more true.
There is only one problem remaining, more acute than ideology was even in the day it had critics. We have so excused ourselves through the ideology of consent that we do not even acknowledge the problem, still less its depths.
a law co-authored by L.A. state Sen. Kevin de Leon would have state-run college campuses establish an "affirmative consent" standard for its students.
According to the language of the bill, SB 967, students who want to have sex must essentially establish that there has been "an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." In fact, the legislation says: "It is the responsibility of the person who wants to engage in initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent."
No more making sexy faces and sounds for you. You've got to verbalize. Or get it on paper.The proposal has drawn jeers from the left-right commentariat: what collegian, already doubtless impaired by spirits, would stop or even think to stop and obtain written permission for the further progression of sexual concourse?
Since according to the proposed law verbal consent is sufficient, critics need not appeal to the absurdity of written contracts in order to make their point. It would be equally simple to devise a consent-granting iPhone app in which the scanning of proprietary matrix barcode identifications suffices for consent. Better yet, with the looming advent of biometric identification tied to smartphone applications, we could simply allow our smartphones to decide for us whether we consent, based on their evaluation of signals in relevant brain regions.
The current problem of sexual assault revolves around the question of consent -- whether it was granted, and in what manner the granting of consent can be reasonably perceived and understood. The hookup culture to which allegations of sexual assault are usually tied cannot be brought under scrutiny, however. To challenge the hookup culture would be to brush up against the sacred doctrine of consent, according to which everything consented to is good and everything not consented to is bad -- except when done in order to foster better consent. (Various regulations and other state managerial policies designed to improve consent can thus be justified even if they are not consented to, since they are ordered toward further consent in the realm of personal interaction.)
But the doctrine of consent can be restated another way. Every personal interaction consistent with the consent principle, or consistent with the nonaggression principle, is acceptable. Liberalism conditions a society for the maximum level of mutual abuse consistent with the harm principle. Once you wall off physical coercion, everything else is a-OK.
These observations return us to the problem of sexual assault, and how to solve it.
Contrary to the critics of Rep. de Leon, he can only be faulted for not going far enough -- so to speak.
If the state of California requires written consent and release of liability prior to sexual activity, it has simply adopted a practice necessary for the legally regulated, commercial-industrial production of sex, whether through prostitution or through obscene materials.
It would be much simpler for liberal society if all sexual relations, at least all nonreproductive sexual relations, were simply made public according to legal standards -- i.e., made pornographic. Consent would be given first, with a release of liability. No obligations would follow. And since our society fears that events do not exist unless they are photographed, the requirement that all sex be pornographic will ensure that everything everyone does is (as in universal photography) simultaneously meaningful and completely meaningless.
Is this suggestion any more absurd than other stratagems our society has undertaken to remove itself from all human responsibility through the doctrine of consent? If the laws of contract could appear before us, they would surely blush.
When we admit that liberalism arranges a society for maximum mutual abuse consistent with the doctrine of consent, we have unwittingly slipt into the observations of a social thinker whose equations of liberalism with the "authoritarian personality" grow daily, and frightfully more true.
There is only one problem remaining, more acute than ideology was even in the day it had critics. We have so excused ourselves through the ideology of consent that we do not even acknowledge the problem, still less its depths.
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