A Case for Sex Exceptionalism: Pornography, Affirmative Consent, and Contract Law

This paper makes a defense of sex exceptionalism in the area of contract law, claiming that under some circumstances, the aims of feminist jurisprudence are best served by treating sex as special. We argue that the protection of individual sexual autonomy requires that sexual activity be regulated according to the principle of affirmative consent, which entails that consent be both explicit and, crucially, revocable. Commercial pornography contracts provide producers with “irrevocable, worldwide, perpetual right and authority” over a performers’ sexual media, violating affirmative consent’s requirement of revocability, and thereby harming performers’ sexual autonomy. As a result of these “permanent pornography contracts,” performers are denied the respect due to them as equals, and hindered in achieving human flourishing. To rectify this injustice, we propose a number of innovative statutory remedies. Ultimately, we demonstrate that in the case of permanent pornography contracts, sex exceptionalism is best suited to secure justice for pornography performers.