By Sherry Colb
In my column for this week, I wrote about the topic of sexual surrogacy, an arrangement in which a sex therapist has sex with a patient in exchange for payment. In my column, I discuss the question whether sexual surrogacy is distinguishable from prostitution and how we ought to think about the practice, from a legal and ethical standpoint. One of the things that bothers me about prostitution (and thus, about sexual surrogacy as well) is the fact that, almost by definition, the job involves someone who would prefer not to be having sex with a particular person nonetheless having sex with him or her because it is part of her (or his) job. In other words, someone is having unwanted sex.
As a college student, I worked for over a year on a study of stress and pregnancy at Columbia Psychiatric Institute. The work involved conducting two telephone interviews of each of many pregnant women, each interview lasting approximately one hour. I still remember two of the many questions that I had to ask each woman during one of the interviews: first, how often was she having sex? And second, was that sexual frequency just right, more often, or less often than she'd like? (This is a paraphrase). Many of the women told me that the frequency with which they were having sex was "more often" than they would have liked. In other words, many of the women to whom I spoke were, on numerous occasions, having sex that they would have preferred not to have.
In 2008, Robin West wrote an article, entitled Sex, Law, and Consent, in which she discussed this phenomenon. She made it very clear that unwanted sex is not the same thing as rape, and she was not proposing that unwanted sex ought to be criminalized. She affirmed strongly that there is an important distinction between nonconsensual sex, on the one hand, and unwanted sex, on the other. Unwanted sex occurs when one of the parties to a sexual interaction voluntarily participates in a sexual encounter in which she did not want to participate. She said "yes" even though she would have preferred to say no. Nonconsensual sex involves a participant who does not agree to participate in sex but instead has it imposed on her by her "partner."
When people complain about the criminality of acquaintance rape, they seem sometimes to have confused unwanted sex with nonconsensual sex. I say this because I hear questions like "how is the guy supposed to read her mind?" when, in reality, the "guy" need not read minds but simply hear his partner's words. If "no" is taken to mean what it says, then the sex stops (or does not start) at the very moment that the word is uttered. It is, ironically, the very people who challenge the legitimacy of acquantance rape statutes that want to argue that "no" sometimes mean "maybe" or "yes" and that accused rapists were somehow able to read the minds of their alleged victims and could tell that their advances were actually welcome.
In any event, in a case of unwanted but consensual sex, both participants in the sexual interaction are willing participants; it is just that one of them does not really want to be a participant. Why does "unwanted sex" occur? Undoubtedly, it occurs for many reasons. Sometimes, it is because the person giving consent is worried that her (or his) partner might lose interest in the relationship if she (or he) rejects a sexual overture. Other times, the person giving consent may believe that it is what she (or he) is "supposed" to do. In talking with the pregant women in the Columbia study, I suspected that this was what was motivating them. They did not seem to feel "entitled" to refuse to have sex with their partners, notwithstanding their lack of desire (and sometimes even the nausea they felt, due to their pregnancies).
As West suggests, unwanted sex is a problem, though not the sort of problem that should be addressed by legal prohibitions (a proposition with which I agree). In response to this view, some might point out that people regularly do all sorts of things that they would prefer not to do, out of a sense of "obligation" or generosity toward a partner. Examples can include cleaning the floors, cooking, washing dishes, taking out the garbage, mowing the lawn, etc. Yet it is difficult to imagine anyone seriously contending that as a categorical matter, consensual but "unwanted dish-washing" or "unwanted lawn-mowing" is a problem worthy of critical analysis. If someone asked most people, "why do you do the dishes?" they would likely say something along the lines of "because it needs to be done and my partner does the cooking" rather than "because doing dishes is, for me, a source of great pleasure, gratification, and joy."
So why should sex be different? If it's fine for people to take out the garbage so their partners will cook dinner, why isn't it fine for people to have sex for similar reasons? Perhaps it is fine in just this way. Yet I share West's misgivings about unwanted sex. For the most part, I think it is unfortunate that people have sex that they would prefer not to have. Unlike washing dishes, a person having sex is expected to be having a good time of it. If he or she is not having a good time, then either (a) he or she is faking having a good time for his or her partner's benefit, or (b) he or she is making his or her displeasure plain, but his or her partner either does not notice or does not care.
If one of the people in the interaction has to fake pleasure, then the dishonesty of the encounter is disturbing. No one feels betrayed by a partner who "fakes" enjoying washing the dishes, but a person is likely to feel quite betrayed upon learning that his or her partner found their sexual encounter dull and uninspiring but was only pretending to enjoy it. And if, on the other hand, the person is plainly not enjoying himself or herself, and this fact is irrelevant to the partner, then that disregard -- while qualititatively distinct from the disregard inherent in nonconsensual sex -- seems at least a distant cousin of it.
In the case of prostitution, of course, both of these things are routinely going to be happening -- the prostitute is likely pretending that the john is giving her (or him) great erotic pleausre, even though that is almost certainly not the case -- and the john, who must realize, despite apperances, that the prostitute is not actually enjoying herself (or himself) is content to continue the sexual encounter without regard to that fact. In a sense, then, the john is using the prostitute as a mechanical tool for sexual gratification, the very definition of a sexual object. And to the extent that sexual surrogacy shares this feature, it is troubling, as unwanted sex is, and in the same ways.
As I suggested here and in my column, I do not support criminalization of prostitution or of sexual surrogacy. Nonetheless, I regard neither one as positively promoting sexual autonomy, so long as one of the participants is doing it for the money.