1 On t he Sexual Contract : Interpreting Critique of Contract Theory in the Era of #MeToo Megan Hirsh University of Florida Abstract Thirty years ago, 1 Carole Pateman published The Sexual Contract (1988). Her feminist critique of contract theory followed from her writings on participation a nd democracy. Through her writings on the sexual contract Pateman argues that the sexual contract is a crucial component of the classic original contract that binds society Pateman holds that, like other classic political ideas, the sexual contract has shapped our major institutions. In view of the 2018 #M eToo movement, it is clear that the consequences of the sexual contract continue to plague the structures of modern society. The move ment has shed light on how Nond isclosure Agreements are employed as a modern form of the sexual contract. proposals for more participative institutional structures and a universal basic income remain viable methods for attempting to correct some of the remaining inequalities women encounter throughout civil society. Introduction Carole Pateman has made enormous contributions to political theory. In her first major book, Participation and Democratic Theory (1970) rejection of old, homogenizing assumptions about the history of democratic thought can be illu She considers the importance of which makes citizens more likely to participate in politics (2010, 814) Crucially, she holds that this applies to industry, as well. within a participatory form of democracy that individuals retain their political decision making po ( 1989, 62). Nonetheless, Pateman finds that there are problems with presuming Pateman advocated for democratization throughout her writing. She contends that in the 21 st century 1 The Sexual Contract (1988)
2 freedom from proponents of the official view of democracy but for too long the market has been 20 08, 233). Informed by her ideas about participation and democracy, Pateman takes on her first of three explorations into the multiple parts of the classic conjecture of the original contract. The Problem of Political Obligation explores the social contract ultimately critiquing the premise that self interest of all citizens, no matter how substantively unequal they are; and so all can be said to 1989, 6 4 65). However Pateman doubts that this assumption is true. She disputes Alan zes his opportunity or not arguing inst ead sense to insist that individuals are consenting when they refrain from an activity which helps 1989, 65). This theory carries into her critique of The Sexual Contract and later, The Settler Contract 2 Contract Her story provides the central framework for understanding her feminist interpretation of classic contract theory Her argument emphasi ze s the consequences of the the original contract (1988, 1). Pat eman maintains contract theorists were able to establish the right 3 ensuring the sexual contract, Pateman sheds light on the structure of modern contracts involving property in the person which create relations of civil subordinati on. Ultimately, she contends that we must I would hope that [The Sexual Contract] might give [readers] Even the best societies are still structured so that somehow men monopolise all the top po sitions, they get all the power (2018). The story of the sexual contract can help us navigate the seemingly endless paradoxes that are involved with inclusion in a civil society ordered by man Moreover, between contract and freedom. 4 2 Although the focus of this paper explores the application of The Sexual Contract the analysis could also be used to consider Settler Contract Slave Contract in the context of present fines a settlers contract as an agreement among colonizers themselves to simultaneously end a terra nullius, a state of nature, and create a civil or political society and sovereignty for the first time. Native peoples do not take part in the contract, but 3 Pateman (1988, 2) citing Adrienne Rich (1980, 645) 4 Contract & Domination (2007)
3 Part I: The Theoretical Framework of the Sexual Contract C lassi c contract theorist conjecture that the original social contract established individuals can make contracts secure in the knowledge that their actions are regulated by civil law and that, if necessary, the state (1989 7 ). Carole Pateman contends that this interpretation of contract theory which is often promoted by political theorists, only considers o ne of many dimensions of the original contract that binds society. 5 so called sexual socio pact is mimicked by conception of society (1989 15). and thusly Through her story of the sexual contract, Pateman reinvig orates the notion that woman is a subject of the original contract, not a party to it (2010, 816) ; so there is an illusion of her consent. male sex ensured her civil subordination was Pat eman contends that contracts do not constitute contract brings something new into being. The original agreement is a contract of creation; it is not 2007, 205). Therefore, Illusion of Consent evokes an argument that runs through much 6 As a result, questions and (logically) only one basis for legitimate government remains; the governed have to agree to be gove 7). Pateman 1989, 68). Locke argues that protectio 1989, 63). Pateman disputes the sufficiency of this Lockean theory of ract, agree, choose, or 1989 characterization of the relation between all citizens and the state ( 1989, 61). terms for domination. Pateman is critical of the notion that individuals could possibly voluntarily consent to contracts resulting in their subordination. She ta kes issue with the influence that coercion has in the making of contracts and argues that the e xistence of coercion during the formation of a contract casts doubt on the validity of its terms ( 1988, 133). However, Pateman stresses that the absence of coercion does important 5 (1989 203). 6 Illusion of Consent (2008)
4 though this is, can obscure an important question: does contract immediately become attractive to the conditions under which people made thei r decision, the agreement might still be problematic 2008, 102). external relation to his intimate property as 1988, b oth parties to the contract enter on the same basis, as property owners who have the common purpose, or common 1988, 56). Nevertheless, the employment contract and feminist critics of the marriage contract have attacked the claim that, if two individuals make a contract, the fact that the contract has been made is sufficient to show 1988, 57). Socialist and fe minist critics point out that if one party to a contract is in an inferior position (the worker or the woman respectively), then he or she has no choice but to agree to submit themselves to disadvantageous terms. As such, W ell known problems about consent are hard to avoid. For instance, how is consent refused; where is consent when workers are unilaterally downsized. It might be argued that, rather than giving consent, the individual assents or acquiesces to the power structure, but this raises other equal ly familiar difficulties about tacit consent ( 2008, 239). Pateman could not have freely elected to enter into its terms. This is exemplified by the prostitution contrac t. Thus, she rejected the classic contrarian notion that consent can be presumed through the agreement of b oth parties In T he Sexual Contract, consent of women whom are assumed identifies a paradox in the logic of contract theory in consent theorists have declared to be incapable of consenting. Yet, simultaneously, women have been presented as always consenting, and their explicit non consent has been treated as irrelevant or ha s been reint erpreted as consent (1989, 72). This paradox extends into the conditions of the 1988, 6). In this regard, the theory of voluntarism which many accounts of the original contract rest upon, is diminished by an inherent contradiction in the attem pt to apply the contract to woma nature of contractual relationships masks how contract serves to structure society based on conditions of inequality. Pateman believes women have been wrongly subjected to the original contract despite having been denied, categorically, their capacity to consent to its terms. Classic contra ct theorists view the capacity to consent as a masculine attribute. Pateman highlights that according to contract all of the same sex is never mentioned; attention is focused 1989, 41). Pateman cites Locke, who claims the that ulation
5 should be read literally; the consent is his consent. Neither the classic contract theorists nor their 1989, 71). Consent and Participative Democracy participative and democratic institutions; she argues, Nonetheless, Pateman does not see deliberative and participatory as synonymous democratization, the creation of a more demo cratic social and political order, and fails to question Pateman connects sexual contract theory to her ideas on democracy by arguing that the implications of the sexual contract are destructive to the establishment of a liberal democracy In emancipatory tradition that has not been given its due. It has been obscured until very recently in individual freedom into subordination or to exclude sections of the population from freedom all In The Sexual Contract [fraternal] 1988, 2); thus, contract is employed to establish sexual difference as political difference. Modern Fraternal Patriarchy According to Pateman, t he original contract that classic theorists imagined w as an institution of the order for civil society She considers a conjectural tale of how freedom wa s won in society nal ensional, and patriarchy should not be strictly understood as paternal right. Pateman s original, dimension of patriarcha pa triarchy ceased to be paternal after the political d efeat of the father, the structures of modern civil society are still affected men, or to men as a fraternity 7 ( 1988, 3 ). 7 the only terminology that specifi cally Addi except some feminists is willing to admit that fraternity means what it says: the brotherhood of
6 P ateman emphasizes that the original contract erects a common bond that unites men around their collective interests as men. and, victorious, make the original contract, are acting as brothers; tha t is to say, as fraternal kin or the sons of a father, and by contracting together they constitute t hemselves as a civil fraternity (1988, 78 ). Therefore, the social contract raises the authority of the so the authority fathe r. 8 small associations in which fellowship is close and brother can know and a ssist his brother) and the public world depicted by Virg 1988, 81). Pateman says the original contract constituted the establishment of modern fraternal patriarchy It is often forgott en that the include s 1989 77). As a misuses and misunderstandings of fraternity (along with patriarchy) should not be accepted or use. She argues that to ignore the masculine character of fraternity is to forget the ascriptive history of the concept. In (1988) Pateman says: The contract constitutes patriarchal c ivil society and the modern, ascriptive rule of men over women. Ascription and contract are usually seen as standing at opposite poles, but the social contract is sexually ascriptive in both form (it is made by brothers) and content (the patriarchal right of a fraternity is established). ( 1989, 43) There is no better concept than fraternity to conjure a reminder of the fraternity that exercises the law of male sex right under the form of the revolutionary trilogy. Social contract theory relies on the assumption of the exclusion of women. Pateman points natural liberty and right of self government, but to gain access to women terms, the brothers create the modern system of marriage law and family and establish the modern order of conjugal or 43). She bond because, as men, they share a common interest in upholdin g the contract which legitimizes their masculine patriarchal right and allows them to gain material and psychological benefit from 1989, 43). Therefore, as a result of the sexual contract, patriarchy takes a f raternal form in modern so ciety, further entrenching the division of man and woman into the public and private spheres respectively Public/Private Dichotomy contr act 8 ety, citizenship in the polis was defined ascriptively and was particular to a given city
7 feminism has radical implications, not least in challenging the separation and opposition between the private 1989, 119). how the subjection of woman affects the whole structure of society. The origi nal contract is y access to women. As such, woman is treated as and thus, cannot be in full pos session of the property in her person Therefore, the sexual contract requires that women are incor porated into civil society on a different basis from men. is and is not in civil society. The private sphere is part of civil society but is se a ntinomy private/public is another expression o 11 ). The private/ womanly/natural sphere exists in opposition to the public/masculine/sphere. Pateman f civil society th rough an ori ginal agreement, women are brought into the new social order as inhabitants of a private sphere that is part of civil society, and yet is separated from the public world of freedom and equality, rights, contract, interests and 1989, foundation for civil i.e., public life, but treated as irrelevant to the concerns of political th eorists and political activists (1988 11 ). ts have emphasized how personal circumstances are child care and the allocation of welfare benefits and the sexual division of labour in the home and wor 1989 Pateman refers The dilemma speaks to the complexities of how women have sought inclu sion in the public sphere. Pateman explains, liberal demand. O n the other hand, women have also insisted, often simultaneously, as did Mary Wollstonecraft, that as women they have specific capacities, talents, needs and concerns, so that the expression of their citizenship will be differentiated from 89, 197). Under a patriarchal conception of citizenship, women are thus allowed only two alternatives: 1989, 197). Feminists oft re conception of citizenship, because the public sphere has been structured accordin g to the interests of men. Some feel that the dilemma can be solved by the negation of sex difference (in other words, gender neutrality), however, Pateman is critical of this notion. She holds that and the bodies of women and men have very different social and political significance. n an exploration of contract and patriarchal right, the fact that women are women is more relevant th an the differences between them (1988 18 ). Pateman rejects that the public sphere is independe nt from the private sphere, for it is her contention that as demonstrated by the classic texts,
8 cann ot be comprehended in isolation (1989 3 ). The ignorance of the interdependence of the two spheres leads to the assumption that the public Although, accor ding to contractarians, the political sphere was theoretically distinct from iding on the Under the structures of the original contract, the public sphere was considered to be the sole agent of the politica l. The distinction of political right as a uniquely masculine trait has been employed as a justification for ignoring the patriarchal right of fathers and husbands that has been enshrined in the public law assertion of his patriarchal right extends into all of civil society. S he argues: the original contract creates the two spheres, can be seriously mislead ing in so far as such a formulation suggests that patriarchal right governs only marriage or the private sphere. In the classic tales the sexual contract is displaced into the marriage contract, but this does not mean that the law of male sex right is conf ined to marital relations. Marriage is extremely important, not least because the private sphere is constituted Civil society (as a whole) is patriarchal. Women are subject to men in both the private and public as in private marriage, and patriarchal right is exercised over women and their bodies in ways other than direct 113). This reflects her central argument rejecting the conjectural history espoused by the classic contract th eorists. T hese historical tales, which establish the division of the spheres, must be challenged, because the ideas behind them are thought to shape the whole structure of society. 9 Pateman depends upon the capacity of human beings to act as if they could contract out labour power or services rather than, as they must, contract out themselves and their labour to be used by another. ical inventiveness has given the name of freedom to civil subordination and repressed the interdependence of civil freedom and (1988, 231). contract exhausts the ways of 10 he person within the 10 Pateman stops short of outlining a new conception of how we might form free relationships.
9 within institutions (held to be) con Pateman contends peculiarity of this exchange is that one party to the contract, who provides protection, has the right to determine how the other party will act to ful fill their side of the exchange (1988 59 ). She contends that these exchanges are sup ported by the notion that property in the person is a political fiction that was imagined by contract theorist s. continues, that allows certain kinds of contracts to appear legitimate. As such, societies constitutively contra (2008, 32). hierarchy, have merely transformed the ways in which social relationships are co nstructed as if women do participate in civil life, it is neve r as full rights bearing individuals, it is always as women ( 2008, 32). C ontract ing out fictional property in persons is the modern means of creating relationships of subordination (1989, 118), and it is important to consider the extent to which these supposedly free relationships resemble the relationship of master and slave. The Fiction of Property in the Person if property can be subject to contract (2002 21 ). In sexual contract theory, n of labor power) can be separated from the rest of the person. Contracts involving property in the person are those that create relationships (i.e. between worker and employer, or wife and husband) of subordination (2002). She maintains that this concept ion of property in the person is a political understa nding how contracts that alienate property in the person undermine the freedom and Contract rests upon the exclusionary principle tha shaped by the refusal to acknowledge that woma n own s the same property in her person as man This can be seen through must be party hat is at issue in the contract (1988 224 ). In these
10 (2007, 210). The fiction of property in the person has been used to justify the permanent structure of To exemplify the nature of how the property in the person of a subordinate is used by superior, Pateman points to employment contracts. rent in the market is merely a piece of property, just like any other, is necessary if such contracts are to be said She cit es the analysis of Coase and argues agrees to obey the direction of an entrepreneur within certa in limits 1988, 59). The essence of the employmen The employer buys the right to control the worker, so the empl oyer becomes the master and the worker becomes the servant in a relat ionship of civil subordination. blic sphere does not come into being on employment ne ver ceases to be a housewife; instead she becomes a working wife, and increases the T he employment contract relies on the fiction of the alienability of labor power. Pateman says, contract in which the worker allegedly sells his labour power is a contract in which, since he cannot 1988, 151). She furthers, The answer to th e question of how property in the person can be contracted out is that no such procedure is possible. Labour power, capacities or services, cannot be separated from the person of r time and they form an integral pa rt of his self identity (1988, 150). Additionally, she says, ended, not a contract of specific performance, and the employer alone gains the ultimate right to decide what the content of t he contract will be (1988, 148). Pateman argues that the employment contract exists to reinforce the 1988, 148). Consis tent with her defense of the use of the concepts 152). I t is clear that e mployment contracts are a form of contracts about proper ty in the person. Thus
11 Pateman also argues structured by patriarchal She explains, The content of the labour of the worker is determined by the capitalist, but since capitalism is patriarchal, the labour of women workers is different from that of male workers. Because the subjection of wives derives from their womanhood and because the sexual division of labour extends into the workplace, it is t empting for feminists to conclude that the idea of the individual as owner is anti property in their persons, the emancipatory promise of contract would seem to be realized ( 1988, 153) Noneth eless, she maintains that in reality structured by the sexual division of la bo u Marx argues that which is qualitatively different from exchange, and only by misuse could it have been called any 1988, perty in the person were peculiar in that they do not involve an exchange, or at least do so only in a very special of contract that [she] analyzed is not an abstract mechanism but inseparable from its relat ional and institutional context (2007, 206). and s tructures She slave and master servant 1988, 117). N to be a housewife; instead she becomes a working wife, and increases the length of her working because only one party to the contract (the man) is an owner of property in the person. According to Levi n from her husband in exchange for obedience, much like a slave contract Thus, social contract theory relies on the paradox that both to possess and to lack the capacities required for cont ract and contract demands that their womanh ood be both denied and affirmed (1988 60 ). This fundamental paradox demonstrates how property in the person can only be seen as multidimensional in that women are seen as possessing a wholly different mix of p roperty in the person. Pateman contends that despite the paradox party
12 various dimensions are distinct but not separate or opposed, and which rests on a social conception of individuality, which includes both women and men as biologically differentiated but not unequal 136). Pateman thinks the marriage contract is the best place to begin to illustrate how patriarchal political right is continuously renewed and re affirmed through act ual contracts in everyday life. 1989, 215). She through the institution of marriage. example of a domestic labour contract, and so the conjugal relation can easily be seen as a remnant o f the pre modern domestic order (1988, 118). She reasons that historically, ife entails becoming a housewife; that is, a wife is someone who works for her husband in the marital home (1988 118 ). The bondage of women to men has been structured and upheld by the law. Consider, for example, the common law doctrine of coverture, which ensured that until late into the nineteenth century, the legal and civil position of a wife was analogous to that of a slave. y in their persons was and therefore it is also general ly true, that all compacts made between husband and wife, when A slave had no independent existence apart coverture, married women were held to be absorbed into the person of their husbands, and women 210). Additionally, nd demanded, her earnings belonged to her husband and her children were the property of her husband, just as the children of the fema le slave belonged to her master (1988 121 ) According to William Thompson, women into mere labourer bondage to s acceptable ways for men to have which men can uphold the terms of the sexual contract subjection of wives 11 has neve r lacked defenders, but until very recently an unqualified defence of the odour of slavery, and provide an embarrassing re minder he also ly, the services of the prostitute cannot be provided unless she is present; property in the person, unlike material property, cannot be separated from 11
13 the 215). So, the prostitution contract and the surrogacy contract also represent contracts that follow from the terms of the sexual contract. Part II : Interpreting the Story of the Sexual Contract in the Era of #MeToo Although society has progressed markedly in the last 30 years, the relevance of sexual contract theory has stood the test of time. Carole century ccount that society is The Sexual Contract 12 According to Pateman, of the feminist movement exist i 13 As a result, the increasing political influence of women has failed to meaningfully effect the power of the modern fraternal order. Sexual contract theory provides a framework for understanding that the struc ture of In contemporary society, institutions have attempted to eliminate sex based discrimination by forcing women to conform to structures that were devised by and for men. under the flag of civil freedom, women are left with no alternative but to (try to) become replicas world as if the facts of sex, class, colour, age, and religion do not count, is to insist that we should deny the most basic human facts about ourselves and thus accentuate the inhumanity and alienation of 134). Whether or not there is a natural d ifference between the sexes is irrelevant insofar as classic contract theorists establish sexual difference as a political construct. (1988, 187). Thus, how the difference is to be expressed in our modern institutions (1988, 226). Acro ss the institutions of civil society, woman continues to face unique structural proposals for more participatory institutional governance and a system for uni versal basic income remain relevant and viable methods for leveling the playing field for women Nonetheless, we must 12 Thompson, S., Hayes, L., Newman, D. et al. Fem Leg Stud (2018). https://doi.org/10.1007/s10691 018 9368 1 13 Ibid, 12.
14 continue to rethink the structures that form our social relationships in order to promote a more free and equal society. Modern day Consequences of the Sexual Contract The Employment Contract and the Effect s of the Sexual complex problems for equalit The story of the sexual contract reveals that the terms of the employment contract presuppose the sexual division of labor The sexual division of labor constituted by the original contract has had a significant effect on the modern condition of institutions in Western economies It cannot be y the institution of empl oyment (1988, 135). The division of labor had a significant effect on the condition of public and private institutions today. The patriarchal structure of the workpla of top management levels which persis ts across corporations. For example, according to a 2013 study 14 among Fortune 500 companies, only 14.6% of corporate executive officer positions are occupied by women. Clearly the lasting impact of the sexual division of labor is plainly revealed by the concentration of men at the top of most corporations. today, use no other jobs are available (1989, 137). From 1980 until 2012, there was little change in both the proportion of men and the proportion of women working part time in the U.S. economy. 15 Workplace Sexual Harassment : Understanding the Carole Pateman, The Sexual Contract Pateman challenges the notion that workers can truly alienate thei r labor power in the employment involves the assumption th 14 https://www.americanp rogress.org/issues/women/reports/2014/03/07/85457/fact sheet the womens leadership gap/ 15 For Now enter, Washington, D.C. Dec. 11, 2013. Web.
15 Women workers are frequently subject to persistent, unwelcome sexual advances, or their promotion or continuing employment is made conditional upon sexual access (1988, 142). In 2017, issues of 16 Following the onset of the movement 35% of women said they have personally experienced sexual harassment or abuse from someone in the workplace. 17 The wide spread astonishment in society over the number of women who have been affected by sexual harassment in the workplace is misplaced ; G iven the lasting effects of the sexual contract, the la rge number of women harmed by sexual harassment should come as no sur prise. Because men still hold a disproportionate share of the power in the workplace, bad men are The #MeToo movement shed United States Supreme Court held in Meritor Savings Bank v. Vinson that sexual harassment creates a hostile or abusive work environment and is a violation of title VII of the Civil Rights Act of 1964, sexual harassme nt remains a widespread problem, affecting victims in every industry, at every level 18 Contracts provide the mechanism for parties to arbitrate claims of sexual Female victims of sexual harassment in the workplace are often silenced by the terms of their employment contract and other forms of the sexual contract so the oppressive structures of the workplace are upheld. College Fraternities: Defending the Modern Fraternal Patriarchy and how some institutions serve to protect the law of male sex right and the modern fraternal patriarchy. College social f raternities have taken heat in the political arena as a result of numerous drinking related deaths of members and an apparent widespread sexual assault of female students. 19 The original contract permits the free association of male individuals in civil society. The modern patriarchy continues to wield influence through fraternal organizations. College fraternities, which are po ss ibly older than the American R epublic, have been under growing public scrutiny. The scrutiny of college fraternities is not new. Fraternities, like male dominant workplaces, are able to utilize legal tactics to protect their influence 16 https://www.newyorker.com/news/news desk/harvey weinsteins secret settlements 17 enter, Washington, D.C. Dec. 14, 2017. Web. 18 Ending Secrecy About Workplace Sexual Harassment Act, 115 H.R. 4729, 2017 H.R. 4729, 115 H.R. 4729 19 The Atlantic Web. March 2014; hese is the binge drinking epidemic, which anyone outside the problem has a hard time grasping as serious (everyone drinks in college!) and which anyone with knowledge of the current situation understands as a lurid and complicated disaster. The second is the issue of sexual assault of female undergraduates by their male peers, a subject of urgent importance but one that remains stubbornl y
16 Social fraternities tuted an funded political action committee that represents fraternities in Washington has fought successfully to ensure that freedom of association language is incl uded in all higher education reauthorization 20 uals both to give and refuse Carole Pateman, Illusion of Consent The #MeToo movement resurfaced a political conversation about consent in cases of sexual assault. and rewrite rape and sexual assault laws. Legislatures already are considering more than two dozen bills that would strengthen laws against rape, teach students that both participants must consent to sexual activity, and extend the time to prosecute or sue those accused of sexual 21 convin sexually aggressive male must disregard a woman's refusal as merely a token gesture ). The theory that accusations that female l assault, is informed by the notion that women lack the ubiquitous capacity to consent. Pateman points to Rousseau, for example, who painted a picture of men as natural aggressors and women as being destined to resist. In essence, he argues that woman mus Why do you consult their words when it is not their mouths that speak?. . The and rightly so; but the tone is not always the same, and that cannot lie. . Must her modesty conde mn her to misery? Does she not require (1989, 76). It follows that, 1989, 77 ) creating a situation that requires women to use force in order for their refusal of consent to be has to fight 22 20 Ibid, 18. 21 Pew Research Center, Washington, D.C. 23 Jan 2018. Web. http://www.pewtrusts.org/en/research and analysis/blogs/stateline/2018/01/23/metoo movement has lawmakers talking about consent 22 Ibid, 20.
17 submission to a sexual act is enough to guarantee that both individuals freely participated in it The eory on consent is problematic, because it does not acknowledge that victims of sexual assault are often coerced or forced into engaging in the act. The burden then falls o nto the survivor to demonstrate that she physically resiste d to the act sexual assault cases, failure to resist can be one of the biggest sticking points for jurors. Often both sides acknowledge that a sex act occurred, and the question is whether it was consensual. Fighting 23 Not to mention, this burden for women to prove that they resisted is enough to keep many women from holding their oppress ors accountable under the law, The confusion of the law leads to situations where women are made to think they consented hough Stormy Daniels maintained that her [laugh] it was sort of I had it coming for making a bad decision for going 24 Issues with how to These issues with have also been at the front and center of contemporary debates surrounding the adjudication of sexual harassment and sexual assault proceedings on college campuses. At public universities, the United States Department of Education has begun rolling back adjudication procedures that gave credence to sexual assault allegations which often lack physical evidence. The Department released universities from a 2011 25 However, allowing the when they could not meet the d ifficult standards of proof required of the criminal justice system. Understanding Nond isclosure Agreements as a Sexual Contract runs through much po litical philosophy as well as much current public policy, that contract can be identified Carole Pateman, Illusion of Consent (2008) In The Sexual Contract, Pateman demonstrates how marriage, employment, prostitution, and 23 New York Times 30 Nov 2017. Web. https://www.nytimes.com/2017/11/30/us/sexual harassment weinstein women.html 24 The Guardian. 26 March 2018. Web. https://www.theguardian.com/commentisfree/2018/mar/26/stormy daniels trump affair claims doesnt look good president america 25 Betsy DeVos Reverses Obama era Policy on Campus Sexual Assault Investigations New York Times 22 Sept 2017. https://www.nytimes.com/2017/09/22/us/devos colleges sex assault.html
18 the original sexual contract. Nond isclosure Agreements (NDAs) are a quintessential form of the modern sexual contract which has been challenged through the #MeToo movement NDAs are used claims containing nondisclosure provisions are the rule and 26 with NDAs. According to sexual contract theory, all NDAs would be considered problematic because they h for exchange in an agreement. NDAs are particularly problematic in cases of sexu al misconduct, because they employ the achieving an when majority of cases, settlement agreements resolving sexual harassment claims in exchange for monetary payments require that victims not speak publicly abo 27 Many times, victims do not freely enter into these agreements. Victims are coerced into entering into NDAs through the power of money. Otherwise, victims are mad e to feel as though they have no option but to enter into a settlement litigation is uncertain in the best of times, and so the victim may ultimately not be a ble to prevail on her claims and may get nothing. Litigation is not only highly uncertain, it is also a long and 28 Therefore, NDAs are also plagued by an illusion of consent ring them Moreover, in cases of sexual misconduct, NDAs give oppressors a tool to uphold the In the U.S., NDAs are used by corporations to fend off investigations by the Equal Em ployment Opportunity Commission (EEOC). The EEOC has the right to investigate workplace sexual harassment to protect the public instances, a sprinkling of se ttlement agreements that contain stipulations prohibiting cooperation 29 Employees can be bound from speaking out before the sexual harassment even occurs by the terms of their original employm ent 26 Above the Law 20 Feb 2018. Web. https://abovethelaw.com/2018/02/non disclosure agreements in the metoo era/ 27 The Atlantic 18 Oct 2017. Web. https://www.theatlantic.com/business/archive/2017/10/legal agreements sexual assault ndas/543252/ 28 Ibid, 25. 29 EEOC v. Astra USA 94 F.3d 738 (1st Cir. 1996)
19 30 31 The #MeToo movement revealed that NDAs are often used to silence se xual harassment and assault claims even when their use may violate the law There is reason to believe the movement will lead to greater enforcement of sexual harassment law as the rights of victims are clarified, for f the #MeToo movement has accelerated to the top of public 32 This is crucial, because victims of sexual harassment often fail to seek justice, because they rightly fear wh at will come from attempting to take on their oppressors. the b assault, workers are right to be uncertain about what NDAs prohibit. That, along with the accompanying risk of getting fired, can discourage employees from sp 33 Several particularly unsettling cases came to light during the #MeToo movement in 2017. Although the powerful Hollywood mogul Harvey Weinstein was sexually harassing and assaulting women for decades, his actions were protected from public scrutiny through structures of intimidation. The Weinstein scandal called attention to the system of underlying structures that often exists to employees of the Wein stein Company have contracts saying they will not criticize it or its leaders document shows. And most of the women accepting payouts agreed to confidentia lity clauses 34 Through the force of the #MeToo campaign, women began calling attention to similar institutional protections across society. Larry Nassar, a USA gymnastics natio nal team doctor, was accused of molesting at least 250 young girls. In a clear violation of th victims of molestation were agreements. 35 The #MeToo movement has revealed how powerful men come d own on women to enter into Nond isclosure Agreements, robbing women 30 Vox 13 Oct 2017. Web; confidentiality clause which prevents an employee or ex employee from speaking about sexual harassment and other workplace misconduct is generally considered to violate federal labor law, though lots of employers use them anyway. The ity rule prohibiting employees from discussing their sexual also held that an employer violates the Wagner Act when it requires emplo The Wagner Act does not apply to domestic workers, independent contractors, or individuals lack protection under the act because she supervises lower rung employees. 31 Ibid, 26. 32 Employer Takeaways From Calif.'s Response To #MeToo Law360 Expert Analysis LexisNexis. 15 March 2018. 33 Ibid, 26. 34 New York Times 5 Oct. 2017. Web. https://www.nytimes.com/2017/10/05/us/harvey weinstein harassment allegations.html 35 Times. 20 Dec. 2017. Web. https://www.nytimes.com/2017/12/20/sports/olympics/mckayla maroney usa gymnastics confidentiality agreement.html
20 of a portion of their right to free speech. NDAs have even been used by government officials to shield the public from k nowledge of bad actors. Regulations guiding the U.S. Congress made it extraordinarily difficult for victims to levy complaints of sexual misconduct against lawmakers. 36 Moreover, President Cohen, coerced Stormy Dani els into enter ing in an NDA 37 Cohen gave a sense of how the law serves to protect men in power when he described his role as the P resident: "I use my legal skills to protect Mr. Trump to the best of my ability." 38 NDAs have become a contractual tool of powerful men in society to exercise the male sex right to access the female body as they pleas e. D espite the progress that the #MeToo movement has bought, in reflection of a conversation on celebrity women has foreshadowed the day to day sexual harassment encountered by women unable to speak out for fear of losing their jobs and homes or jeopardising their intimate relationships. In this disparity of voice lies proof that the un silencing of women in contemporary Despite #metoo, how many men still think in exactly 39 Basic Income and Participatory Governance of Institutions as Solutions the right to vote Carole Pateman, Illusion of Consent Carole Pateman offers universal basic income and more participator y governance of institutions as possible solutions to the consequences of the s exual contract. Sh e views both as mechanisms for democratizing institutions. Pateman says, and maintaining individual autonomy because it provides the material basis necessary for social participation and for secure standing as a c itizen, and it is the symbolic affirmation of that In dividuals require both the right to consent and a basic income to pa rticipate in modern government 40 is an ideal that can be applied to institutions across society. A more participatory structure could certainly work to resolve inequities in the workplace that result from the widespread subordination of women to the conditions of structural gender segre 36 Washington Post 27 Oct. 2017. Web. https://www.washingtonpost.com/politics/how congress plays by different rules on sexual harassment and misconduct/2017/10/26/2b9a8412 b80c 11e7 9e58 e6288544af98_story.html?utm_term=.3dda01b1ec65 37 uit that Trump didn't sign their NDA and there could be Business Insider 7 Mar. 2018. Web. http://www.businessinsider.com/stormy daniels lawsuit reveals trump affair details 2018 3 38 Rokus, Brian, et al. CNN 28 Mar 2018. Web. https://www.cnn.com/2018/03/27/politics/michael cohen trump lawyer/index.html 39 Ibid, 12. 40
21 of employment despite its undemocratic character. Indeed, participation in paid employment is now widely seen to be necess Thus, ailing to take democratic arguments for the democratization of economic life have neglected a crucial dimension Moreov er, basic income is defined by Michael Goodhart (2008, 139). Goodhart applies basic income to his framework for Democracy as Human Rights tical commitment to universal emancipation through securing the equal enjoyment of fund a mental human rights for should be adequate to provide what I call a modest but decent standard of life. This is a level sufficient to allow individuals to have some control over the course of their lives, and to participate to the extent that they wish in the cultural, economic, social, and p 41 She argues, 42 al reform. A basic income would offer an effective deterrent to NDAs. In the status quo, women often feel compelled to enter into these agreements, because they fear that otherwise, they will risk their livelihood. A basic income would give fem ale victims of sexual assault and sexual harassment more leverage to refuse to sell their silence; however, this is just one of example of the potential benefits a basic income would offer for women in civil tion that stems from capitalist organization of production and the differential access to political power people to exercise their autonomy, give meaningful conse nt, and engage in participatory 6). Summary framework for understanding the patriarchal structure of modern institutions. As P ateman says, the final remnants of the old emancipation creates civil subordination and patriarchal Pateman concludes that classic contract theory which offered society a means of legitimizing relationships of domination and subordination. Consequently, contract theory has tory of contract, the patriarchal construction of sexual difference as mastery and subjection remains intact but 41 Politics & Society Vol 32, Issue 1, pp. 89 105. 2004 Mar 1. 42 Ibid, 41.
22 creating social relationships, she does not nega te the potential use for contracts in a free and equal civil society. 43 contract the view that men have justified right of government over women in the modern state recisely because they then interact with an institution. The institution is maintained through these contracts, which create t out the property in their persons. The story of the sexual contract can provide us with a better under standing of modern institutions so that, as a society, we can contemplate how constructs of sexual difference have been manifested into real political differences between the sexes. In the 21 st century era of #MeToo, conditions of female wage laborers, the state of modern social fraternities, an illusion of consent in Nond isclosure Agreements all serve as exam ples of the lingering social consequences of the sexual contract. We must overcome these conditions which l equality of individuals, so that democracy can (1989, 219). Pateman f the challenges woman faces as a result of her historical oppression 43 in their own right is by no means the
23 In Text References 2008. Illusion of Consent: Engaging with Carole Pateman and I.M.Young. University Park, PA: Pennsylvania State University Press. Pateman, Carole. 1970. Participation and Democratic Theory Cambridge: Cambridge University Pre ss. Pateman, Carole. 1988. The Sexual Contract. Stanford CA : Stanford University Press. Pateman, Carole. 1989. Disorder of Women Cambridge: Polity. Pateman, Carole, and Charles Mills. 2007 Contract and Domination Cambridge, MA: Polity. Phillips, A., Medearis, J., & O'Neill, D. 2010. Profile: The Political Theory of Carole Pateman. PS: Political Science & Politics, 43(4), 813 819. doi:10.1017/S1049096510001629.