The only thing I want is for people to stop seeing me naked: consent, contracts, and sexual media

The boundary between what we reveal and what we do not, and some control over that boundary, is among the most important attributes of our humanity.

Thomas Nagel

Abstract

In pornography, standard modelling contracts often require a performer to surrender rights over their public image and sexual media in perpetuity and across mediums. Under these contracts, performers are unable to determine who accesses, for what duration, and under what conditions, their sexual media. As a result, pornography has been described by some performers as a “life sentence” – a phrase which, if true, violates some strong intuitions we share about the importance of autonomy in sexual activity. Using the framework of “affirmative consent,” I argue that these contracts violate performer’s rights to sexual autonomy, and ought therefore to be considered objectionable. Overall, I argue that the legal regimes we create have a strong impact on people’s lives, and more important than legislating individual outcomes, the type of infrastructure we build around people’s decisions has the potential to radically empower – or disempower – those engaged in sex work.

Forthcoming, Hypatia (2024). Draft available at PhilPapers.

A Case for Sex Exceptionalism: Pornography & Contract Law

The law…was not written by women, white or Black, rich or poor. It has not been based on women’s experiences of life, everyday or otherwise…It was not written for our benefit, and it shows.

Catharine MacKinnon

Abstract

Recently there has been a movement in feminist jurisprudence against what has been termed “sex exceptionalism.” Those campaigning for its elimination argue that sex exceptionalism, the process by which “sex is routinely distinguished from comparable human practices and subjected to singular regulation,” is pernicious not only to women in particular, but to sexual freedom in general. Sex exceptionalism is accused of, at base, reinforcing sex-negativity, upholding “conservatism, prejudice, and moralism,” and even augmenting mass incarceration.

We believe that the aspersions cast go too far. While sex exceptionalism has the potential to be harmful in some spheres, the failure to be sex exceptionalist is equally harmful in other contexts. In this paper, we argue that law which is anti-sex-exceptionalist, in our terms “sex depreciationist,” can also uphold sex negative cultural norms and impinge on the rights of the marginalized–two of the critiques often levied against sex exceptionalism. In select situations, differential legal treatment is a tool of sexual justice rather than oppression. We make our case by highlighting an example where the law’s failure to be sex exceptionalist is detrimental: the application of the ordinary premises of contract law to pornography contracts. Pornography performers are often subject to what we term “permanent pornography contracts,” under which the production company is granted the “irrevocable, worldwide, perpetual right and authority” over performer’s sexual images. As a result, performers are perpetually unable to revoke consent to the dissemination of their media, leading to a loss of sexual autonomy.

This, we argue, is an area where the failure to treat sex as appropriately distinct from other forms of media leads to direct harm. Contract law’s refusal to recognize the special implications of sex does not challenge sex negativity; indeed, it upholds the antiquated and dangerous ideas about femininity, sexuality, and promiscuity which the sex depreciationist case purports to displace. Even more importantly, sex depreciationism in the context of pornography contracts inflicts profound suffering on real individuals. Given these consequences of present contracting practices, the anti-sex-exceptionalist case is evidently not–as proponents suggest–synonymous with sex positivity and sexual justice.

Draft available here.

Sexual Autonomy in the Age of Artificial Intelligence

Abstract

The importance of sex to the human condition has led to the creation of numerous social and legal norms meant to protect the value of this area of life, among which “sexual autonomy” is an increasingly important governing concept today. We rely on sexual autonomy in carving out privacy from the eyes of the state, in pursuit of equality in gender relations, and in the creation of norms that enable physical and emotional integrity. Yet sexual autonomy is thus far a neglected concept in the discourse around artificial intelligence, leaving open a dangerous lacuna: how will AI impact human sexuality?

This paper examines one particular threat to sexual autonomy by artificial intelligence: that of algorithmic artificial pornography. AI-generated sexual media may threaten human sexual autonomy in two ways. First, we may have reason to be worried about sexual manipulation of consumers by companies via their bots. If the AI algorithm is attempting to predict consumer preferences, it may guide the consumer towards forms of sexual media that he or she would not otherwise have chosen, disempowering the consumer as a sexual agent. While some consumers may experience such algorithmic guidance as beneficial, exposing them to new and perhaps ultimately more desirable forms of sexuality, we may also have reasons to worry about potential harms. If sexuality is at all habituated, meaning that our pornography impacts our desires—a matter of some controversy—then having machines “choose” our sexual experiences may undermine our capacity for human sexual flourishing.

Second, and still more worrisome, AI promises the potential of non-human “interactive” online sexuality, such as AI partners or scenes in “virtual reality” (VR). Interactive sexual media has the potential to bring many benefits to consumers, especially for those who have struggled to find partnerships in the physical world. However, here we have the problem that the consumer is not the only active participant in determining what sexual acts are pursued; because the AI can act in response to the consumer, the bot or VR-partner can behave in ways which compromise the sexual autonomy of the human. What should our response be to rapes in virtual space? We have some research on this behavior, but only with regards to other human actors (Horne 2023); what moral agency can we ascribe to the AI, and what might we owe victims if the system does behave in ways experienced as a violation?

Overall, this paper argues that we ought to institutionalize protections for sexual autonomy into our systems for governing artificial intelligence, and posits three means of doing so. First, via the democratic process of legislation, we ought to mandate that producers of artificial intelligence meet certain standards of interpretability and explainability to enable consumer control over their sexual media. Second, via the infrastructures of the technologies themselves, we must provide safety mechanisms that enable companies to understand when and how AI tools act in ways that harm sexual autonomy. Third and finally, via corporate governing structures, we must determine a bill of sexual rights to which consumers are entitled, ensuring sexual autonomy not only for current AI tools, but for those we develop in the future.