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.