Hallie Liberto is an assistant professor of philosophy at the University of Connecticut. She is spending the 2014-2015 academic year at Princeton University as a Laurance S. Rockefeller visiting fellow. Her work is on moral problems that arise in markets and in interpersonal relationships related to: the transfer of moral rights; promises; exploitation; and sex. Hallie received her PhD from the University of Wisconsin – Madison.
Promising Sex
Hallie Liberto
Consider a promise made by a college student, Jane, to another college student, John, that she will have sex with him tonight after the homecoming game. Call this case Homecoming.
We do not tend to take promises of this kind very seriously. We remind young people that they may change their minds about having sex at any time, no matter what they have said or done in the past, no matter what sort of expectations they have raised in their partners. We say they may change their minds at will, and without reasons. If we are correct when we issue these reminders, then that must mean that promises to have sex are very different from most other types of promises. After all, permissibly breaking a promise ordinarily requires a reason, at the very least – typically a very powerful one. But note that promises to engage in sexual activities are not the only sexual promises we make, nor are they the most common. We often make promises to refrain from having sex with other people. We take these promises not to have sex very seriously.
If our reaction to this second type of sexual promise is appropriate, it shows that a promise does not misfire (fail to be a promise, or fail to generate promissory obligation) just because its content is of a sexual nature. In a current paper-in-progress I argue that both types of sexual promises belong in a special category of promises that can be made, can generate promissory obligation, but ought not to be accepted by a promsiee (the person to whom the promise is made). However, the very first step of this project takes some work to establish, and that is what I’ll do here. Does a promise to have sex generate a moral obligation to have sex? If our advice and reminders to young people are correct, then the answer is: no. But I think we are incorrect.
First, let us assume that Jane’s utterance was accompanied by all of the standard, associated felicity conditions. For instance, Jane’s promise is voluntary. Jane is sincere; Jane intends to do as she promises; and John believes that she intends to do as she promises. Jane intends for her promise to be morally binding. Both John and Jane take it to be the case that Jane now has a moral obligation (conditional on the outcome of the game) to have sex with John. It seems that Jane’s attempted promise does not fail to be a promise in virtue of any of these structural and contextual features of the performance of the promise. (For a discussion of felicity conditions, see: Austin, 1975 [1955]).
Does Jane’s utterance generate the right sort of moral obligation in order for it to count as a promise? Let us (very briefly) examine a variety of the most popular, contemporary accounts of promissory obligation and how they could be applied to Homecoming.
Tim Scanlon grounds promissory obligation in generated expectation. Promises promote a social practice that advances a human interest in knowing and planning for the future (Scanlon, 1998). Judith Thomson grounds promissory obligation in reliance (Thomson, 1990). For Thomson, a promise is an invitation to rely on the promisor (the person who makes the promise). A broken promise is wrong because it frustrates the expectations and/or reliance held by the promisee. A promise gives a promisee a map of some part of his or her future – a map to be used in planning. A broken promise renders that map inaccurate.
Now, Jane has generated an expectation in John that she will have sex with him tonight. If she does not have sex with him, she frustrates this information interest. The sketch of the future that she provided to him for navigating his life is inaccurate. John might even have made choices relying on her word. Perhaps John turned down other activities for the evening after the game – like a Homecoming party, or an alternate date, because he prefers to go home with Jane and have sex instead.
David Owens says that a promise is broken when the promisor fails to allow the promisee to decide whether the promisor performs what is promised. Failing to allow the promisee to exercise this discretion amounts to violating a right held by the promisee. Owens thinks that humans have an authority-interest (as opposed to an information interest) that promise-keeping advances. It is good for humans to be able to have moral authority over one another’s behavior, and to be able to give this moral authority to others (Owens, 2006 and 2012).
Is any such authority interest advanced in Homecoming? Perhaps. Having some moral pull on Jane – being able to appeal to moral reasons in convincing her to have sex with him – gives John standing to get something that he wants. Further, there are various reasons why it might be in Jane’s interest to be able to give John this authority. She might not be able to secure John as her date for the evening if she merely predicted that she would have sex with him. However, putting herself under a moral obligation to him through a promise might be what it takes to win him over – especially if she knows that he knows that she will take this obligation seriously.
So, Jane’s utterance does not fail to be a promise in virtue of failing to generate a moral obligation that can appropriately be called a promissory obligation. Arguably, there is another way that an attempted promise might fail to be a true promise. The content of the attempted promise might cause the promise to misfire. For instance, Seana Shiffrin believes that we cannot make promises to do immoral things (Shiffrin, 2011). On her view, my promise to steal something for you is a promise that misfires. Further, promises regarding only past choices and behavior fail to be promises (e.g. “I promise that I have finished my homework” is not a promise. If the speaker has not done her homework, and the speaker knows it, she has not broken a promise, she has told a lie).
Now consider, why might the content of Jane’s attempted promise prevent it from being an actual promise? The content of Jane’s promise certainly pertains to her future and not to her past behavior. So, we are not mis-categorizing the utterance. Is Jane promising to do something morally wrong? Perhaps she would be gravely hurting her best friend who is in love with John! But let’s stipulate that this is not so. There is no feature of this case that renders the performance of the promise’s content immoral.
Have we exhausted the ways in which the content of a promise can cause it to misfire? Consider that one way in which sex is considered to be different from many other subjects of moral investigation is that some of our moral and legal rights regarding sex are treated differently. We have a legal and a moral right against others having sex with us – a right that we can waive (by giving consent to a particular other). From here on I will refer to this right as our: negative sexual right. In the legal realm (here and in most developed countries), individuals cannot forfeit their negative sexual rights. For instance, we do not inflict legal sexual punishments for criminal behavior. Further, we do not allow people to voluntarily alienate their negative sexual right (that is, voluntarily give up their own power to arbitrate their negative sexual right). When people waive this right through the process of consent, they retain the ability to un-waive the right at any time by withdrawing consent. If our legal treatment of the negative sexual right mirrors our moral negative sexual right, then this moral right is also inalienable. So, perhaps Jane’s promise does misfire in virtue of its content – she is trying to grant John a right that she cannot grant him, an inalienable right.
However, Jane’s promise, even if successful, would not amount to Jane alienating her negative sexual right. I believe that the feature of Jane granting John a right in Homecoming that we find disturbing is that it seems to us that if John has been granted a right, then he may go ahead and have sex with Jane, even if she has changed her mind. However, what John gains is not a right to Jane’s body, but the moral authority to determine an aspect of Jane’s moral “landscape” (as David Owens would say). John determines whether or not Jane will be wronging him if she fails to have sex with him.
This does not mean that John can have sex with Jane against her (present) will. Consider a case in which I promise my ruby ring to Meena. I then change my mind and decide to keep it. I have wronged Meena in breaking my promise. I may even have violated a moral right granted to Meena by the promise – a right against me failing to let her decide whether I will give her the ring. However, Meena is not within her rights to come take my ring from me. She has no right to the ring itself. The same would be true if I promised her something that was not an object. Imagine that I promise I will stay for dinner. However, as dinnertime approaches, I change my mind and decide to leave. I breach my promissory obligation to Meena. However, she is not within her rights to lock me in her house and prevent me from exiting. Her moral right gives her the authority to decide whether I will have wronged her when I leave her house. She is not within her rights to decide whether I leave her house; she still needs me to allow her to decide – something I fail to do in this case. Analogously, if Jane chooses to break her promise in Homecoming, John may not force her to perform the content of her promise. He does not have a moral right to the sex itself.
I think that it is this final point that gets at the heart of what we mean when we tell young people that they may change their minds at any point in a sexual encounter, no matter what they have promised. We do not mean that they do no wrong to their promisees. We mean to tell them that they have bodily rights, moral and legal, that they can always arbitrate. They have a right against others having sex with them. They must always waive that right (through consent) in order for it to be permissible for someone else to have sex with them. A promise to have sex does not involve consent to sex and, even if it did, they can always withdraw their consent, even if they cannot withdraw their promise. We might also be reminding them that the moral disvalue of their sexual discomfort can outweigh a promissory obligation.
In structuring my inquiry into sexual promises around Jane and John, I have made a presentation-related choice with both costs and benefits. Here is a cost: my case, Homecoming, advances a bad stereotype about the degree to which men versus women want sex and pressure their partners into having sex. I treat the man as the character who might choose to compel the woman into sex she does not want. In reality, both men and women sometimes compel their partners into having unwanted sex. Next, here is the benefit of using the cases that I have used: Ordinarily when we tell young people that they may change their minds about having sex at any time, no matter what they have said or what expectations they have raised, we are telling this to young women. Ordinarily when we remind people that their dates do not owe them sex, no matter what has transpired in the evening (e.g. an expensive dinner, sexualized dancing), we are telling this to men. I chose a case in which a young woman promises to have sex with a man (rather than vice versa, or by using a same-sex couple) because I wanted to tap into my reader’s memory of having given this reminder to young people, or having received it, or having heard it be delivered to others. I want my reader to consider whether my analysis rings true, especially when consulting these memories.
References:
Austin, J. L. How To Do Things With Words. 1975 (1955), Edited by J. O. Urmson and Marina Sbisà. London: Oxford University Press, 2nd edition.
Friedrich, Daniel and Nicholas Southwood. “Promises and Trust” ” in Promises and Agreements ed. Sheinman; Hanoch. Oxford University Press: 2011.
Owens, David. 2006. “A Simple Theory of Promising.” Philosophical Review. 115: 51-77.
Scanlon, T.M. 1998 What We Owe to Each Other. Cambridge, MA. Harvard University Press; p. 304.
Shiffrin, Seana (2011) “Immoral, Conflicting, and Redundant Promises’, in J. Wallace, R. Kumar, and S. Freedman (eds.) Reasons and Recognition: Essays on the Philosophy of T. M. Scanlon (Oxford: Oxford University Press), pp. 160-161.
Thomson, Judith Jarvis. The Realm of Rights. Cambridge, MA: Harvard University Press: 1990; Oxford University Press. 2011.
Philosopher 
Your analysis rings very true to me, and I think it’s brilliant. There’s one detail I did not understand: why a promise to have sex does not involve consent to sex Also, you’re saying that the moral disvalue of [Jane’s] sexual discomfort can outweigh a promissory obligation and I am curious in what circumstances you think the discomfort outweighs the obligation. Is this the case even if John’s discomfort (sexual or otherẃise) in case Jane does not keep her promise is isgnificantly larger than Jane’s discomfort if she fulfills her promise against her inclination?
Thank you for a very interesting piece!
Argh, I was looking for someone working on exactly this a few weeks ago, Hailey! I didn’t know you were. Glad I do now – I may be trying to tap you for some things 🙂 I am finishing a paper on the pragmatics of sexual negotiation conversations right now. Anyhow, great piece!
Anca, thanks for your comment. I actually didn’t mean to make the case that a promise to have sex doesn’t involve consent. (Though, I think this is perfectly plausible.)
I just meant to point out that: IF the negative sexual right is inalienable, and IF a promise involves consent, then the consent is retractable even if the promise (and promissory obligation) is not.
And so sorry, Anca – as for the other part of your question, I don’t have a view on this. I just meant that line as a reminder that promissory obligation can be outweighed.
And thanks, Rebecca!
I think this is really smart. One thing that’s missing, I think, from conversations with young people about sex is the idea that one is entitled to feel angry or frustrated or even humiliated when a partner explicitly or implicitly promises sex (if there is such a thing as an implicit promise–perhaps “knowingly creates an expectation that sex is on offer” is more accurate) and then doesn’t follow through. I think those feelings are permissible and reasonable; what is unacceptable is forcing someone into sex because s/he has promised to provide it, or to punish him/her for breaking the promise. Those feelings of anger are reasonable if, as you say, the promisor wrongs the promisee by breaking the promise.
I wondered whether you were making the strong claim that breaking a promise to have sex always wrongs the promisee, or the weaker claim that breaking such a promise *may* wrong the promisee. I imagine it’s the latter and perhaps your paper goes into this issue–I just wondered what sorts of cases might illustrate the times when the promisee is wronged versus times when s/he isn’t. For instance, a promise to have sex later is usually implicitly predicated on the promisee’s not doing anything really obnoxious to the promisor between the time of the promise and the expected time of the sex. 🙂 Is that a formal feature of a promise to have sex, such that I do not wrong my partner if I promise to have sex with him/her later but renege after s/he flirts with the waitress or tells me I look old? Or have we both just committed different types of wrongs?
Sorry for the length; I found the post really interesting!
So great, thank you so much for this.
Very acute analysis, Hallie. A few things I’d be interested in having you follow up on:
1. You wrote early on that “both types of sexual promises belong in a special category of promises that can be made, can generate promissory obligation, but ought not to be accepted by a promsiee (the person to whom the promise is made).” Perhaps I missed it, but I didn’t see this thought developed later on. Could you say more about why sexual promises ought not be accepted by the promisee, and what ‘accepting’ would amount to in such a case? (The latter interests me because I’m skeptical about acceptance being a condition of promissory obligation in the first place.)
2. I think what your post shows is, straightforwardly, that promising to X is not consenting to X. To consent to X is (normally) to waive a right against others refraining from X, whereas promising doesn’t waive a right against others not refraining from X but seems to give others a ground of complaint if one does not subsequently X. Promises, once broken, don’t authorize their enforcement by others, whereas consent can.
3. That said, both consenting and promising allow others to press claims against consentors and promisors who don’t perform. I’d be curious to know if you have thoughts about what, if anything, those claims would amount in the sexual domain. If (as you elaborate in the post) the negative sexual right is inalienable, what if anything do we owe to those either (a) with whom we consented to sex, or (b) to whom we promised sex, given that they are not owed sex itself?
This is a great case study, and I agree with the conclusion. I think you omitted to say why it’s such a difficult conclusion, though. The problem is that you introduce the idea of a wrong that cannot be righted. If Jane breaks her promise and fails to have sex with John, as you note, he still has no right to take the sex without her consent. By the commonly accepted rules of most people’s sexual relationships, he doesn’t have the right to go and have sex with someone else. The only punishment available is a general lessening of his regard for Jane and her trustworthiness, but for a young person excited about having sex, this doesn’t seem satisfying (as I recall!).
So the reason your well-argued conclusion is difficult to accept is that it creates the possibility of moral wrongs which cannot be redressed to the satisfaction of all parties – and I think that’s a genuine problem for a well-ordered society. (I’m thinking of Dennett’s argument that one of the key features you would need in order to sign a contract with a robot would be the ability to punish the robot.) In fact, a better social solution might be to declare that having sex is not apt for promising (just as in many places it cannot be contracted). If we instill through education and social norms that whatever someone says, they cannot commit themselves to future sex, that would do more to lessen the negative emotional heat that can be associated with sex.
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There’s plenty that’s refreshing here, but also something that doesn’t sit right with me — perhaps it’s something that’s (sometimes) morally awkward about promising sex and/or accepting such a promise, but also something about how this plays differently for men and for women.
So first, let’s distinguish among sexual activities; they might not all be the same. Promising to perform oral sex differs from promising to receive penetration vaginally or anally, and both of these differ from promising to penetrate another person with an enlarged organ.
The differences, here, have to do with the role of arousal. For it’s not clear that one can promise to be aroused (Let’s set aside pharmaceuticals for a moment). Hence, it’s not clear one can promise to do things that depend on arousal, where penetrating another person with an erection is a clear case of something that depends on arousal.
Does performing oral sex depend on arousal? Not directly, right? Nor is it clear that a person accepting oral sex should worry about whether the other person is aroused; both parties may well accept that this is a kind of one-way act, like giving a backrub.
Does receiving penetrative sex depend on arousal? Well, not exactly, but accepting penetration in a non-aroused state differs (at least for many people) from giving a backrub in a non-aroused state. Is it unproblematic to give and/or accept a promise of to allow penetration later (vaginally or anally), regardless of recipient’s arousal at that later time? Perhaps in some cases, but both the promise and the acceptance of it are … (lacking a clear word here)… ugly. (And I’d call this not a promise to “have sex” but a promise to allow something sexual to be done to one.)
And one last note: in the case of heterosexual intercourse, should it give us pause that there seems to be a built-in asymmetry whereby a person expected to use a penis has a “oops, can’t perform that act now” excuse while the person expected to accept penetration never has that logistical excuse… What do you all think?
This is a very interesting argument and very thoughtful comments. I’d like to contribute and I hope my question is germane to the topic.
In terms of promising a ruby ring to Meena and then changing your mind. You do state that you have wronged Meena, but Meena does not have the right to take the ring from you. Likewise, the same is said when you promise to stay for dinner, but then change your mind. In the case of Meena and the dinner guest, I would expect them to be angry, disappointed, or upset with you for changing your mind. Nevertheless, they cannot violate your right to keep the ring or to leave the dinner. When it comes to changing your mind with a promise to sex, is the expectation to be angry, disappointed, or upset warranted? We do remind people that they can change their mind regarding sexual behavior, but does this mean that we ought to teach people to not get angry, disappointed, or upset if someone does change her mind regarding sexual behavior? Should the negative emotions still be expected? If so, I think it may put a burden on the promiser than one would rather have sex rather than go through the burden of having a partner being upset.
Part of the point of promising is often to bind yourself against expected future disinclination to perform some act. And we teach children that they ought to keep their promises, meaning that even when they will disvalue doing what they promised, they ought to do it anyway. If, then, we teach children that they shouldn’t ever be in a position of having sex without wanting to have it, the conclusion seems to be that they should never promise to have sex. Perhaps this suggests that there is something about having sex that makes it unfit for promising. And the fact that we can promise not to have sex doesn’t raise the same problem, since we don’t think there’s something wrong with not having sex even when you want to that is equal to the wrong of having to have sex when you don’t want it.
Fantastic essay Hallie, and I find your argument quite convincing. I really liked the analogy with Meena, who is not permitted to lock you in her house in order to force you to fulfill your promise. This got me thinking, though, about an interesting complication: if she does this, can you truly be said to have “stayed for dinner”? There’s an interesting sense in which you have not, rather, you have intended to leave and had that intention thwarted. But this means that she has not forced you TO fulfill your promise, since you have not intended to fulfill your promise. No need to invoke your rights here, under this explanation: promises come with an implicit “I will intend to…”, and thus there is something like a conceptual sense in which literally forcing someone to fulfill a promise is impossible.
The analogy to Homecoming is straightforward: Jane’s promise cannot ground a reason for “John [to] have sex with Jane against her (present) will,” precisely because the fulfillment of a promise is an act of one’s present will. What do you think of this suggestion?
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Your analysis seems very reasonable. The comments rightly bring up having rights to other things/having some ability to punish in the case of a broken promise. That is an uncomfortable aspect of this question. I wonder if we can bring this out by asking how this analysis changes when we vary the strength of the promise?
If I offhandedly say I’ll give you my ring the moral impact of me failing to do so is very limited, maybe even nothing. If I swear to you on my mother’s grave that I shall without fail give you the ring then the moral impact is vastly greater. In that case it might sometimes be reasonable you to claim a moral right to the ring. But even assuming that I had no ability to grant you that right (say the ring was not mine to give) you certainly have the right to some compensation.
Are promises of sex similar to promises to give someone a ring that you might or might not later decide to buy? If I fail to buy it then nothing I did grants you the right to the ring itself. But I surely do not get of scot free. You have the right to compensation, even if not to the ring itself. For very serious promises we seem to think that regardless of any other rights justice demands some sort of payment.
Suppose Jane makes a very serious vow to sleep with John, maybe on their wedding night. We might still argue that her negative right to refuse remains absolute. But it seems at least reasonable to say that John has a right to some form of compensation for a real harm suffered, even if this could not include a right to the sex itself.
If I were still “in the game,” I would react to such a promise as either a flirt, in which case I would be excited, or a serious contract, in which case I might be so turned off as to break off relations, even friendship, with Jane.
As a flirt, I would take it to be an attempt to remind me that Jane found me attractive and exciting. As a contract, I would take it to mean that Jane had something seriously wrong with her and that I didn’t want to be involved with her.
Of course, this is a 60-year-old talking, not a college age person.
The use of obligation here is a straw man. An obligation requires four parts, the offer, acceptance, legality, and consideration. Obviously consideration is absent so no obligation may be created. If consideration were present, then a binding obligation would exist and the default would result in damages. In default, the typical claim for damages would be refund of the consideration, lost profits, or some other damage that can be shown and counted. This is moot since no consideration is discussed or exchanged.
The use of morally right and wrong is another straw man. No qualifier of the morals of the individual or the morals of their social environment is given. Society has already spoken and promiscuity is a wrong, as no one know who the father may be or has contracted for the upkeep of the offspring.
The individual’s morals, humans are observed to be adept at rationalizing current behavior, so the individual may slide his moral scale to any place he chooses. Each may choose for himself what is morally right and wrong. Clearly, on this scale the author is correct and failing to deliver on the promise of sex is morally wrong. There should be some punishment.
The article only serves to obfuscate the issue of consent. The conventional definition where consent is a condition prior and permission is given no longer satisfies the individual’s new moral climate, so another definition must be legislated.
In this case I agree with the author’s premise and consent may be given and retracted at any time.
It is clear that the time when consent becomes binding, or gives immunity to the predator, may only happen as a condition subsequent, specifically at dinner the next day.
So the next day, John has dinner with Jane, Jane receives what she wanted and gives her consent to the previous night’s sex act. Consent bestows immunity from prosecution to John.
However, at dinner the next day, if John has moved on from Jane to Jane’s mom, Jane rightfully feels wronged and damaged. She feels anomie. Her moral code has not delivered to her a moral good. She has now been raped and her mom is in immediate danger from the same predator, a condition she caused by bringing this together.
I agree this is a wrong that society should confront. Jane should go to the legislature and have consent redefined as a condition subsequent, so she may have John locked up for causing her to feel anomie. We should all support her, the author is a genius in this vision.