Sex-Contracts, Revisited

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.