Albertina Antognini and Susan Frelich Appleton, ‘Sexual Agreements’, 99 Washington Law Review 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 … (more)
[Orit Gan, JOTWELL, 29 May 2023]
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