celebrations of sex as untrammeled liberation

[...] adding the category of gender harassment doesn’t cure the problem of under-inclusiveness—if anything, it underscores the basic difficulty. All workers—men, women, trans, cis, gay, straight, and bi—suffer harassment on the job constantly by virtue of their status as workers, and have absolutely no “civil right” under the law to be free of it, unless by chance it can be regarded as racially or sexually charged.

The bullying, the belittlement, the undermining, and the generally shitty, uncivil, and sometimes sadistic treatment of workers that is a part of so many workplaces goes at best unchallenged under the prevailing legal definition of harassment as discrimination. At worst, this consensus actively shores up this destructive status quo, by homing in on a civil right to be free of only some of the more egregious forms of gender harassment—and only then if it can be characterized as sexual and aimed at a victim because of sex. That some harassment at work is a civil rights violation, in other words, helps legitimate the considerable harassment that cannot be so characterized.

This is a regrettable implication of the structure of virtually all of our civil rights laws, including our law of sexual harassment. All workers should enjoy a civil right to a harassment-free workplace. All workers should enjoy a right to be treated with dignity and respect in their place of employment. Work matters, hugely, to virtually everyone; it is often our central place of civil identity. Civil rights should not only address discrimination, regardless of how we interpret sexual harassment as an elementary mode of discrimination. Civil rights and civil equality should fundamentally sustain our rights to inclusion as equals in public spaces, which most profoundly include our work spaces. We all should have a right to civil treatment: in fact, that should be our absolutely non-negotiable core civil right.

[...] Unwelcome sexual advances at work are suffered basically because of economic coercion that pertains to labor: the conditions of harassment are endured because one’s work and paycheck are conditions of survival. But unwelcome sexual advances at home or in the street are suffered because of other forms of coercion, or other forces of social life—some subtle, some not. Targeting sexual harassment at work as a civil rights violation has the unintended but predictable consequence of rendering sexual harassment everywhere else to be less understood, and perhaps even invisible, in both cultural and legal terms.

The law’s message is pretty clear: if the sexual harassment you’re suffering isn’t happening at school or work, it’s not remediable, at least as a matter of Title VII law. This looks and feels wrong. Doesn’t the sufferance of unwelcome sexual advances in other spheres also undercut women’s equality? Does all of the unwelcome sex and sexual attention women endure only injure them if and when it is coerced through the mechanisms of the paycheck? Does that mean that in all those other spheres of life—home, the street, the public square—sexual harassment, understood as the imposition and sufferance of unwelcome sex, is okay? Is harassment elsewhere normal or unobjectionable—a kind of persistent cultural white noise that’s just something women are supposed to put up with?

Maybe sexual harassment is only a civil rights violation—and therefore only a wrong—if it’s accompanied by the coercive power that comes at the end of the stick of employment. Maybe in other spheres it is what it has always been: what women put up with. Maybe in those non-work-related contexts, in other words, women’s bodies are still up for grabs.

[...] Much sex that is unwelcome is the result of coercion, and much of that coercion is the result of financial necessity. But employing financial reward or punishment as a means to obtain unwelcome sex does not meet the legal standard of rape. More generally, sex that you have because if you don’t, you might lose something you care deeply about, such as your job, or your lease agreement, or a meal, or approval from a teacher, or acceptance by your community, or your husband or boyfriend’s good graces or civility, might be or feel coerced, but it is not for that reason rape. The law doesn’t regard these forms of coercion as sufficiently immediate, or frightening, or threatening to life and limb to vitiate consent. Unless and until that changes, there is a great deal of coercive sex—sex procured through the exercise of power, by basically threatening the withholding of something necessary or strongly desired by the coerced party, that is legally regarded as consensual and therefore non-criminal. When it occurs between bosses and workers, such coerced, unwelcome sex can become, via the strictures of the Meritor ruling, sexual harassment. Coerced, unwelcome sex outside of the workplace, however, is neither criminal, if consensual, nor is it sexual harassment—because it doesn’t interfere with one’s rights to employment. Perhaps it should be criminal, or perhaps some of it should be. But it currently is not.

We got rid of the marital line as the marker between licit and illicit sex, and part of what we did when we did that was perhaps to extend ownership rights, albeit in a watered-down form, to men as an amorphous social class. The ownership that a man once had of sexual access to his wife, might now be regarded—by some—as having been granted to men generally, rather than to a particular man. Women’s bodies—for some—have in effect become not owned by husbands but rather annexed into part of the commons. The entitlement a man enjoyed to his wife’s body by virtue of marriage, to whatever degree that habits die hard, may now be felt far more broadly. We don’t restrict sex to marriage. Nor, then, do we restrict the rights of accessibility that came with it.

Many women and girls, and some men and boys, engage in sex they do not want, desire, welcome, or enjoy for scores of individual or personal reasons. A girl may seek status from her peers, or the attention or affection of a high-status boy; a woman may submit to routinized unwelcome sex because she is dependent upon the man for economic support. A wife may do it because she needs her husband to leave money for the groceries in order to make the kids’ lunches in the morning, or because she wants his protection against other men she may rightly perceive to be dangerous, or because she wants to ward off a vague possibility that eventually he will rape her if she withholds her consent this time. A girlfriend may do it because she wants to avoid her boyfriend’s foul mood should she say no, or because she loves him and doesn’t want to hurt his ego or his feelings, or because she feels duty-bound to provide sex regardless of her own desire by virtue of the prescriptions of her religion. Or—and most complex, and impenetrable—a girl or woman (or a boy or man) may consent to sex she doesn’t want simply because she realizes how badly her partner wants it and she has internalized his desire as some sort of motivating command that should determine her sexual availability. She may consent to sex she doesn’t want or welcome because she thinks he will suffer physical pain if she does not provide him a means of sexual release and she doesn’t want to cause him pain. All of this sex is neither rape nor, in most cases, harassment. Nor, again, in most of these cases, is it even coerced. But it is unwanted and undesired and in many cases, at least, it is also unwelcome.

our penumbral constitutional right to privacy

What we seem to have a hard time recognizing is that while consent works fairly well as the demarcation of the legal from the illegal in the realm of sex—nonconsensual sex is rape, assaultive, and criminal, while consensual sex is none of that—at the same time consent is only a necessary, and clearly not a sufficient condition of good sex, i.e., sex that’s both hedonically and morally good.

This is partly because of the overvaluation, in this consumerist culture, of consent itself as a marker of value, and hence the prime moral determinant of virtually all personal transactions. Consent, after all, demarcates not only rape from legal sex, but also theft from gifts and bargains: nonconsensual takings are thefts, and hence illegal, while consensual transactions—bargains and gifts—are legal. That a commercial or gift exchange is consensual implies that it isn’t theft. But the same reasoning surely doesn’t mean that it is therefore a good, fair, or even mutually beneficial exchange, as the entire consumer movement from the 1950s to the present attests.

Likewise, consent (among other things) demarcates illegal slavery from legal work: if work is consensual, it’s not slavery. But that doesn’t mean the work or labor contract is good: it might be exploitative, dangerous, demeaning, and underpaid. Labor law and labor movements wouldn’t be necessary if consent alone was sufficient to guarantee that our labor contracts are always good.

Sex is parallel in this regard to labor and commerce, but in the sexual realm, our difficulties seeing the harms in the transactions to which we consent seem even more acute. That sex is consensual means only that it’s not rape—it’s not any sort of guarantor that the sex is either morally or hedonically good. Yet, with sex, we only have a vague sense of what the relevant moral constraints might be—beyond the minimal constraint of consent—that might follow from this. We’ve only just begun to put that question on the table. That consensual sex should be welcome by both sides—mutually desired and mutually pleasing, at least in aspiration—might be a good place to start. When women are, eventually, fully included in what my Kantian friend Heidi Li Feldman loves to call “the empire of subjects who are always treated as ends, and never as means,” I believe this will be understood. In fact, when that happens, all of this will likely be too obvious for words. But we’re not there yet.

which falls outside the ambit of nonconsensual or obviously coercive sex but which nevertheless is both unwelcome and unwanted