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Is Sex Special? Martha Nussbaum Replies to Todd Henderson, James Joseph, Valentina Urbanek, Scott Anderson ? and William Landes

I am grateful to the many readers who commented on my Spitzer piece. I cannot answer all the points they raise. I shall briefly respond to a group of points about Spitzer, and then turn to the important arguments of Valentina Urbanek and Scott Anderson about the specialness of sex.

Todd Henderson is right to ask me what I think about the financial laws that Spitzer is suspected of having broken. Do I think that if the suspect financial transactions occurred in connection with activities that should never have been illegal, those ancillary transactions themselves should not be deemed legally or morally problematic? I do not hold this view. I think that if there is solid evidence that Spitzer actually broke laws involving the use of campaign money, mail and wire fraud, etc., then he should be held accountable for these violations. However, all the evidence so far (including a comprehensive Associated Press inquiry whose results were published on March 21) suggests that he did not violate these laws. Let's wait and see.

James Joseph, in two posts, asks me some excellent questions. I agree with him that Spitzer is being reviled in part because of perceived hypocrisy. If he had been a zealous prosecutor of financial crime, I would not consider it hypocritical for him to have broken laws concerning prostitution, since, as I've argued, these laws should not exist. (Similarly, William Bennett was not hypocritical when he inveighed against vice of many sorts but indulged in gambling, which his religion does not forbid.) However, Spitzer actually went after prostitution with zeal. Insofar as he did so, his behavior is hypocritical.

Joseph then asks whether we shouldn't hold all public officials to the letter of the law, even if the laws in question are bad. I am not convinced. There are many sex laws on the books that are bad laws: laws against adultery and fornication, for example. Until Lawrence v. Kansas Texas, consensual sodomy (both homosexual and heterosexual) was a criminal offense in many states. Nonetheless, I myself would not think less well of a public official who broke such mean-spirited and offensive laws. Indeed, very many public officials did so, and everyone who knew the content of sodomy laws knew that they very likely did so, in the common case where sodomy was defined in terms of oral-genital and/or anal-genital contact without regard to the genders of the parties. (At one point prior to the bench trial in Bowers v. Hardwick, lawyers for Hardwick tried to get information about the sexual conduct of heterosexual employees of the Georgia Attorney General's office, in order to ascertain how many of those heterosexuals had violated Georgia's equal-time sodomy law. The information was not forthcoming.) So, I wonder if Mr. Joseph would have liked (in the pre-Lawrence days) a searching inquiry into the sexual practices of public officials within their chosen personal relationships, to determine whether their behavior was or was not consistent with the sodomy law. I certainly would find that idea profoundly offensive.

In his more recent post, Joseph asks me about the relative indifference with which public opinion greeted the Patersons' revelation of their extramarital affairs. I agree with him that this reaction shows that America has progressed a good deal since the days when even to have been divorced was virtually disqualifying for public office. Now the equanimity extends beyond divorce to non-secret affairs during a troubled period in a marriage. Prostitution, however, still upsets people greatly, in part because it reminds people that some women are not primarily identified with a marital relationship, but have sex with lots of men ? the very thing that, as I wrote, often prevented rape convictions, in the days before evidence of a woman's prior sexual behavior was excluded from trials. So, I would say that our society still needs to learn restraint in passing judgment on female behavior.

Now to Urbanek and Anderson. Together, their posts (hers a comment on my original piece, his an independent post) ask an all-important question: If we do not treat sex as unique, but regard it as one among many forms of employment, will we still be able to say the things we want to say about sexual harassment and other related issues of concern to feminists? I have long regarded Anderson's Ethics article as the most powerful challenge to my own views in this area, so I'm glad to have this chance to attempt a reply.

First, let me clarify my own position. In my 1998 JLS article (reprinted in my 1999 book Sex and Social Justice), I argue that the important issues to focus on, where sex work is concerned, are the same issues that should concern us when we think of low-paid factory work and other work that is performed by women with few employment options. We should, that is, institute careful protections for health and safety. We should make sure that women are protected from violence on the job, and that they have choice of which clients to accept. Above all, we ought to ensure that all women have a decent education that gives them access to a wide range of employment opportunities, so that nobody is railroaded into sex work for want of options.

Urbanek agrees with these points, and for this reason is inclined to favor decriminalization. She argues, however, that sex has a special link with self-respect, in such a way that even in a regime of legalized sex-work the sex-worker will continue both to be stigmatized by others and to feel herself of low worth. I am not convinced. I think that my intellectual labor has a very deep and intimate connection with my self-respect. That is why I would feel a deep loss of self-esteem were I to be in a repressive state that forced me (or tried to) to write what pleased the regime rather than what I wanted to write. Such submissive intellectuals are rightly stigmatized, though they may be excused if the threats that led them to sell out were severe. Similarly, I think that what is connected to stigma and low self-esteem, where sex is concerned, is lack of control and autonomy. Many sex workers lack these things, but legalization would enable them to gain more control, to unionize, and in general to exercise their trade in a self-respecting way. I would add that in many times and places married women have utterly lacked control and autonomy, and have for that reason lost self-esteem. In my view, control is the issue pertinent to dignity, not the presence or absence of a wage.

Anderson then asks the toughest question of all: can a feminist like me say what I've said about prostitution while continuing to uphold laws against sexual harassment? In the workplace employees may be asked to do all sorts of things as a condition of continued employment, he argues, and it seems that it is only a view that sex is sui generis that allows us to pass laws forbidding employers from asking for sex in the workplace.

Many feminists of the postmodern/queer theory stripe do think that a general stance against Puritanism and the legal regulation of sexual conduct entails opposition to laws and policies against sexual harassment. Janet Halley, for example, has argued that we ought to reject all laws and policies that divide sex acts into good and bad, demonizing some group of sexual actors as the deviant or bad ones; she explicitly applies her conclusion to university policies on sexual harassment, and, more generally, to Title VII, which she calls "extremely porous to existing antigay attitudes," an invitation to "sexuality harassment." (See Halley, "Sexuality Harassment," in Directions in Sexual Harassment Law, ed. Catharine MacKinnon and Reva Siegel [New Haven: Yale University Press, 2004] 182-200.) I disagree. When one takes a stand in favor of women's freedom of choice, urging the decriminalization of sex work under certain specific conditions, one is not prevented from identifying non-consent, coercion, and discrimination as evils in women's working lives. Sexual harassment is wrong because it harms women, who cannot work with dignity under conditions in which they are being pressured for sexual favors. As Catharine MacKinnon powerfully argued in Sexual Harassment of Working Women (New Haven: Yale University Press, 1979), sexual harassment is a ubiquitous form of sex discrimination, and it establishes a hierarchy of power in the workplace, in the presence of which no woman can be fully autonomous or dignified. So, my general interest in dignity, control, and freedom for women leads me to favor such policies.

Anderson's argument has not yet been answered, however. Can we really forbid employers (and employees) from asking for sex as a condition of employment without conceding that sex is in a category of its own? I think we can. Each workplace must figure out which forms of exploitation and discrimination are its biggest dangers, and each may reasonably make rules prohibiting employers from asking for whatever it is that might lead to exploitation and harm. When I was a professional actress and a union deputy for Actors' Equity, most of my union time was spent enforcing the rules against requiring actors to bring coffee, work in the box office, paint scenery, etc. ? all of which the union-management contract forbade, recognizing that these are standard ways in which actors are exploited. Those rules were profession-specific, and each profession will have its own list of off-limits activities. In all professions, however, sexual pressure on women is a major form of exploitation and discrimination, so it's reasonable for all workplaces to police sexual harassment.

Halley and her sympathizers argue that sexual harassment policies forbid many consensual transactions and thus, like laws against sex work, interfere with people's personal choices. They are forms of inquisitorial and puritanical intrusion, and anyone who supports a right of sexual choice in general should object to them. Interestingly, a similar argument has been suggested by our colleague William Landes, in "The Art of Law and Economics: An Autobiographical Essay," 41 The American Economics no. 1 (spring 1997), reprinted in Passion and Craft, Economists at Work, Michael Szenberg, ed. (Ann Arbor: Michigan University Press, 1998). Landes argues (very briefly and tentatively) that university sexual harassment policies impose transaction and other costs on the dating and marriage markets: for example, he says, he could not have dated his current wife, who was then a graduate student under his supervision. So, both the postmodern feminist and the libertarian economist suggest that it is I who am being puritanical and repressive in upholding such policies.

First of all, it is not at all clear that Landes would have had any difficulty conforming to the requirements of a sexual harassment policy. The policy at MIT (Valentina Urbanek's institution) is an extremely weak one, forbidding only conduct "that has the intent or effect of unreasonably interfering with an individual or group's educational or work performance at MIT or that creates an intimidating, hostile, or offensive educational, work, or living environment." Consensual dating would usually not violate that policy. Our university has a much tougher policy, forbidding (or at least describing as "unwise and inappropriate") all sexual contact between people who stand to one another in the relationship of supervisor and supervisee. Such more stringent policies are by now the norm in most universities, because it is recognized that even a relationship that is consensual at the start may evolve in a way that puts undue pressure on the weaker party. Even so, however, Landes's future would not have been compromised. He could simply have arranged things so that he did not supervise this particular graduate student's work. That happens all the time. Suppose this were for some reason impossible, and suppose Landes had indeed been deterred by the existence of such policies: then, as he says, "I would have been a big loser." Nonetheless, as Landes himself acknowledges, it is still possible that the overall benefits of such policies (Landes mentions "reducing coercion by men") exceed their costs.

But still, isn't it inconsistent of me to object to a Puritanism that puts sex work off limits and then to turn around and support policies that put many very common forms of sexual behavior off limits? Once again, I reply: no, because the Millean defender of liberty is a defender of genuine liberty, which entails non-coercion, the opportunity to choose, and, I would add, a climate of equal respect and non-discrimination. Sexual harassment policies protect these important values.

Full post as published by The University of Chicago Law School Faculty Blog on March 25, 2008 (boomark / email).