Thanks to the #Metoo Movement and the tsunami of women bravely coming forward to reveal the sexual misconduct of powerful men at work (known as the Weinstein Effect), we are forced to face the discussion of what it means to consent to a sexual relationship.[1]
The specific issue about consent raised by these recent revelations is whether consent is ever possible when power and money are used to force sexual relations. Can sexual interactions be a fair exchange of sex and money, power and/or fame, resulting in a meeting of minds, or is freely given consent never possible in circumstances of power inequity?
From my work in family law, this issue is not only relevant in work situations where it has been highlighted but of particularly importance and relevance in marriages between powerful figures and their subordinates and in general in marriages with significant income disparities between husbands and wives.
Professor Catharine A. Mackinnon, currently a visiting Professor at Harvard Law School, has coined a term which captures this dilemma succinctly –“Coerced Caring”. Coerced Caring sheds light on a circumstance where a woman cares for a man while feeling she has no choice. That is, due to the large economic power differential, a woman will submit to a powerful man due to economic survival while feeling nothing for him. It is not unusual for men in our society to have a blind spot to that Coerced Caring is exploitative. This is due to many men’s gender stereotypes that when a man provides financially to a woman, a woman shall oblige to him and cater to any of his requests.
We are in an age where women should no longer have to suffer degradation of their personhood and the exploitation by persons in positions of economic power. Imposing penalties on persons who use their power and money for sexual exploitation would help to break the bond between material survival and sexual exploitation. It would support and legitimate women’s economic equality and sexual self-determination.
One way to penalize those who exploit their economic power and degrade women’s personhood is the expansion of the tort of intentional infliction of mental suffering in the context of economic coercion of sex.
The Question that Now Needs to be Examined is: what role do economic and power disparities play in consent?
This question was recently examined in the works of Brit Marling and Lauren Sandler. In Marling’s “Harvey Weinstein and the Economics of Consent”[2] and Sandler’s “We Need to Talk about the Economics of Consent”[3] there’s a new realization regarding the link between consent and economic coercion: that women may receive economic benefits from these relationships.
Coerced Caring and Sexual Relations at the Workplace
Despite consent and economics seeming like a more recent discussion, feminist authors have been writing about this issue for at least four decades ago. In 1979, Catharine A. Mackinnon in her book “Sexual Harassment of Working Women”[4] examined the dynamics between the boss and his secretary, and how what is expected in that work relationship can easily create the potential for sexual dominance and submission [5]:
“…the secretary comes to ‘feel for’ the boss, ‘to care deeply about what happens to him and to do his feeling for him,’ giving the relationship a tone of emotional intensity…a large part of the secretary’s job is to empathize with the boss’s personal needs; since the secretary is party of the boss’s retinue, what happens to him determines what happens to her.”[6]
As of result of the secretary’s-imposed role in providing emotional labour to her boss, Mackinnon speculates about a connection between the secretary’s objective conditions and her feelings, including sexual feelings about her boss.[7]
Mackinnon’s analysis of the dynamic between the secretary and her boss highlights two causes for why the secretary experiences Coerced Caring: 1) The power that the boss has over her as a result of her involvement in every aspect of his life and 2) her economic survival being directly linked to her boss’ economic survival. Moreover, her economic survival also depends on her satisfactory performance at work including satisfactorily organizing his personal life.
The Analog of Coerced Caring at the Workplace in Marriage
Mackinnon’s analysis of the secretary and boss dynamic clearly resonates with sentiments expressed by Marling and Sandler. Specifically, the "Coerced Caring" that often results from economic inequality between men and women so that women’s careers and livelihood become “determined by their intimacies”[8], including their decisions about whom to marry. These observations all lead to an important “dichotomy between real love, which is a matter of free choice" and consent through Coerced Caring which is a result of compulsion and even duress.[9] As Marling quotes her eloquent mother: “to be a free woman, you have to be a financially independent woman.”[10]
It is not uncommon for relationships between the boss and his secretary, the doctor and his assistant or subordinate nurse, the professor and his student, the dentist and his dental hygienist to transition into marriages. “When modern man marries beneath him, he gets a nanny, a nurse or a secretary for free.”[11] The dynamic that existed prior to the marriage between the subordinate and her boss not surprisingly continues into a marriage.
The Coerced Caring she experiences at work continues at home as her economic survival depends on him as her main economic provider. Her economic survival is directly linked to her husband/boss’ economic survival.
Coerced Caring in the Institution of Marriage or Common Law Relationships
The element of economic coercion may be present in many marriages, not just those where power inequity is present. As stated by Bertrand Russell: “Marriage is for women the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution”.[12]
According to Marina Adshade and Neil McArthur, there is a widespread idea that sex between men and women is basically a transaction. Women, it was thought, gave men access to sex and in return they received the income and security that came with being a wife. Subsequent to the sexual revolution, the transactional view continues to endure but the difference suggested now is that women are willing to trade sex for something else: a relationship, financial support, or just the prestige of being intimate with a high-status male.[13]
The Current Legal Canadian Terrain
In Canada, legislation and the Courts have been dealing indirectly with the issue of economic coercion and Coerced Caring. S. 273.1 of the Canadian Criminal Code outlines the positive definition of consent to engage in sexual activity: “the voluntary agreement of the complainant to engage in the sexual activity in question” and “…consent will not be voluntarily obtained if ….the accused induces the complainant to engage in the activity by abusing position of trust, power or authority.” This means that at least there is a recognition that one cannot consent to sexual relations if the perpetrator induced the complainant or coerced the complainant while the perpetrator is abusing a position of trust, power or authority.
Economic coercion is a much broader concept than the abuse of power for sexual gains by a direct superior. It is a recognition of an economic gap between men and women, and women being coerced into sexual relations due to this economic gap. A woman may be entering into sexual relations due to a concern over her own economic survival and/or that of her child.
The principle of economic coercion was examined in the context of capacity to marry. In order for a marriage to be valid, it requires that both parties provide free consent. A marriage that is entered into by threats or duress is void.[14] Nevertheless, at least with the current state of law, duress must amount to element of risk or danger. A marriage performed in exchange for financial benefit does not meet such a test.[15]
In Scott v. Sebright,[16] the court dismissed an application for nullity on lack of consent. The plaintiff was induced to participate in the ceremony on the promise by the respondent’s family to provide material benefits. The negotiations were conducted by the plaintiff’s mother. The parties had not met before the marriage arrangements. The court held that the conduct of the family did not amount to duress.
The Tort of Economic Coercion
In a trial decision of McLean v. Danicic[17] Justice Harvison Young outlined the three elements of the tort of intentional infliction of mental suffering as follows: (i) flagrant or outrageous conduct; (ii) calculated to produce harm; and (iii) resulting in a visible and provable illness. The McLean decision makes clear that the tort of intentional infliction of mental suffering is available in cases involving outrageous conduct meant to intimidate a spouse and prevent him or her from pursuing his or her claims.[18]
The Tort of Economic Coercion
Women today, as clearly evidenced by the #Metoo Movement, are insisting that the degradation of sexual misconduct and exploitation must stop. The thesis of this article is that expansion and use of the tort of economic coercion could become one of those tools for breaking down the bond between material survival and sexual exploitation. “It would support and legitimize women’s economic equality and sexual self-determination...”[19] The expansion and the use of the tort of economic coercion would not only penalize men for sexual misconduct and exploitation but also encourage women’s bravery in coming forward and resist the exploitation.
[1] It is important to note that although this article predominantly refers to women who are being coerced, there are obviously circumstances where men are the subordinate party to a marriage (both in heterosexual or same sex marriages) and thus face the same situation and issues as women.
[2] Brit Marling, “Harvey Weinstein and the Economics of Consent” The Atlantic October 23, 2017 < https://www.theatlantic.com/entertainment/archive/2017/10/harvey-weinstein-and-the-economics-of-consent/543618/>.
[3] Lauren Sandler, “We Need to Talk About the Economics of Consent” February 2, 2018 Huffpost <https://www.huffingtonpost.com/entry/opinion-sandler-economics-consent-sex_us_5a7a2202e4b06505b4e8eb2d> .
[4] Catharine A. Mackinnon “Sexual Harassment of Working Women: A Case of Sex Discrimination” 1979 New Haven: Yale University Press.
[5] Rosabeth M. Kanter "Men and Women of the Corporation" New York: Basic Books 1977.
[6] Supra note 4 at 54.
[7] Ibid.
[8] Supra note 2 & 3.
[9] Supra note 4 at 55.
[10] Supra note 2.
[11] Rachel Johnson, “Why alpha men fall for gamma girls, and other cruel truths” The Telegraph January 22, 2005 < https://www.telegraph.co.uk/culture/3635420/Why-alpha-men-fall-for-gamma-girls-and-other-cruel-truths.html>
[12] Bertrand Russell, “Marriage and Morals” 2009 The Bertrand Russell Peace (1st published January 1st 1929). In my practice, I have been advised by women clients either explicitly or implicitly that they were compliant with unwanted sex in order not to suffer economic consequences. Those who comply with unwanted sex reported negative emotions included feeling disappointed in oneself or feeling uncomfortable about engaging in meaningless sex. Emily A. Impett and Letitia A. Peplau: “Sexual Compliance: Gender, Motivational, and Relationship Perspectives”. The Journal of Sex Research Volume 40, Number 1, February 2003: pp. 87-100.
[13] Marina Adshade and Neil Mcarthur, “Beyond Consenting, Women Actually Want to Enjoy Sex” The Globe and Mail January 19, 2018.
[14] Feiner v. Demkowicz 1973 CarswellOnt 191 at para. 34.; In Hawaii: It is a misdemeanor to subject a person to sexual contact in the absence of consent or where the offender uses a threat, express or implied, that places the victim in fear of ...financial loss. HI Rev Stat § 707-700 (2013).
[15] Scott v. Sebright (1886), 12 P.D. 21; This authority from the Courts in Australia has been widely accepted by the Canadian courts.
[16] Ibid.
[17] McLean v. Danicic 2009 CarswelOnt 3289 at para. 85.
[18] Georgina L. Carson and Michael Stangarone: “Tort Claims in Family Law – The Frontier” 29 CFLQ 253 at 262.
[19] Supra note 4 at 7.
