Getting to Yes

The Telegraph recently reported that a man in France has been fined $14,000 for refusing to have sex with his wife… for twenty-one years. I read a couple of commentaries on-line that suggested this judgement should be objectionable to women – despite the fact that the defendant in the case was in fact a man. Feminists have worked hard over the past decades to reform the laws around sexual consent, and one of their most difficult challenges was to earn recognition of the concept of “spousal rape”. A woman was long presumed, on marriage, to grant her spouse free access to her body. Rape was defined as, in the words of Canada’s 1892 criminal code, “the act of a man having carnal knowledge of a woman who is not his wife without her consent”. As this makes clear, so long as the couple were married, consent was not required. The law does now recognise marital rape, and therefore protects women from sexual assault by abusive husbands. But it is easy to see why feminists are wary of any precedent that might push us back towards that misguided conception of marital sex.

I think it is worth taking another look at this court judgement, and asking whether it really is a step back to the bad old days. We are not talking here about a situation where someone is being protected from duress or coercion. The judge said that this is a case where someone refused to fulfill the implicit trust we enter into when we get married. As he put it, article 215 of France’s civil code, which states married couples must agree to a “shared communal life”, implies that “sexual relations must form part of a marriage”. It is hard to imagine too many people disagreeing with this. There are prenuptial arrangements that stipulate just how many times the couples must have sex, and even prescribing fines for refusing. But most of us would find a contract like that ridiculous, because we just take it for granted that sex is part of marriage.

When I discussed this in class, the point was quickly raised that she could have just left. And that’s true. Eventually, she did. But there are lots of reasons to stay in a sexless marriage. You may actually love the person. You may hope things will improve. And the fact that one party is free to avoid a situation does not necessarily change the moral obligations of the other person involved. Let me suggest a different sort of example to make that clear. Say you go to the butcher to buy meat. When he rings up your bill, you notice it is higher than it should be. You confront the butcher, and he says: “Well I don’t like people like you, so I overcharged you.” He may not have liked your race, or gender, or height, or who knows what. He might say: “If you don’t like it, leave.” And you would be free to do so. There might be another butcher shop down the street. Your freedom to go elsewhere does not change the fact that the butcher has committed an immoral act. I think that the same applies here: just because couples are free to leave a marriage if they don’t get what they want, doesn’t mean that they don’t have any obligations to one another. And the obligation to agree to sex is, I think, one of the most important. In this light, fourteen thousand dollars in fact seem like a rather paltry sum.

The authors of the book Spousanomics wrote an article for GQ where they talked about the difficulties couples have in maintaining a healthy sex life. They proposed a simple solution:

All you have to do is: HAVE SEX. Even when you don’t feel like it. Even when you have fifty-seven emails you haven’t replied to. Even if you’ve been up since five working on your pilot slash ticket out of area sales management. Even when the season premiere of Ice Road Truckers is on.

Their view is that if your spouse wants it, and your not suffering from some debilitating physical condition, like a broken penis, that prevents you, you should do it. Their argument is based on a prudential premiss: if you don’t have sex with your partner, it might undermine your relationship. I would suggest we could make the same argument on moral grounds: you should feel obliged to have sex with your partner if she wants it and you can reasonably agree. To look at it the other way, when you agree to be in a relationship, you give your partner a presumptive right to have sex with you.

My argument relies on a premiss that I will come back to in future entries. I believe that for the vast majority of people, sex is an essential part of a good life. A life where someone has been denied sex, or given much less than they might want, is other things being equal one that is less good, less enviable, than one that delivers sexual satisfaction. If we commit ourselves to someone sexually, we bear a heavy moral burden if we deny sex to them for no good reason. Now there may be good reasons. But we should be sure to take the costs seriously as well. Not because our partner might leave us, or have an affair, but just because it is the right thing to do.

Image: William Strang, Temptation, 1899

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  1. mel h.

    Just curious, what do you think makes something a moral obligation versus some sort of prudential necessity? Are you operating from any particular meta-ethics?

    Posted January 9, 2012 at 12:00 pm | Permalink | Reply
    • neil

      Mel, here I’m appealing to a kind of eudaimonistic (or virtue ethical) premiss: that there are certain prerequisites for a normal human life to count as going well, of which I consider a certain level of sexual satisfaction to be one, and that generates moral obligations for others who care about that person. It is Aristotelian to the extent that it takes certain characteristics to be at least universal enough to human nature that we can assume them unless we have evidence to the contrary. Aristotle himself says of the standard human desires: “People who fall short with regard to pleasures and delight in them less than they should are hardly found; for such insensibility is not human.”

      Posted January 9, 2012 at 4:12 pm | Permalink | Reply
    • neil

      I think however that the question of how we generate obligation within a relationship depends not on any particular ethical theory but on some rather uncontroversial assumptions: we enter into a relationship with someone because we care about them and should WANT to promote their happiness; also we have (implictly) promised to do so, and we have placed ourselves (if we demand fidelity) in a unique position to do so. Promises generate moral not just prudential obligations. If you promise to shovel my walk, and then don’t do it, you’ve failed to fulfull a moral obligation. You should have done it not because you thought I’d be angry, but because you promised to do it. I think most moral theories would agree with that, though they might explain it in different ways. Then there is the question of reciprocity. Remaining faithful to someone creates an obligation in them to reciprocate by actually having sex with you. Again, that sort of reciprocity I think makes sense under most moral theories.

      Posted January 9, 2012 at 4:24 pm | Permalink | Reply

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