Will Sheen’s “sex contract” stand up in court?

Celebrity, Bizarre, Divorce, NakedLaw, News, Relationships

When actor Charlie Sheen recently disclosed to the public that he was HIV-positive, it was also revealed that Sheen—who has claimed to have had sex with thousands of people, including hundreds after he was diagnosed with HIV—required his sexual partners to sign non-disclosure agreements (NDAs) before the acts.

Sheen is now besieged by lawsuits for misrepresenting his health status to the signatories of those agreements. Can a contract regulating sexual intimacy really be legally binding?

While other forms of intimacy contracts frequently end up in court, most of them involve parties who had, at least at the time of signing, a devoted, committed relationship. The most common of these concern the allocation of financial resources in divorce. Sheen’s non-disclosure agreements are a more alien form of sexual contract, but fit right in with the long, tumultuous history of intimacy litigation.

The tort of seduction

The common law tort of seduction evolved in the late 18th century as a means of addressing would-be harm resulting from broken promises of marriage by suitors. In Sex, Lies, and the Duty to Disclose, Santa Clara School of Law professor Michelle Oberman writes that the tort of seduction “was designed to permit the father of the woman ‘scorned’ by her lover to recover from the harm he had inflicted upon him by damaging his daughter’s reputation, and thus, her prospects for marriage.”

A common form of recompense for a woman’s broken heart and dashed honor were the so-called heart balm doctrines, through which a jilted woman could seek damages, often amounting to a fortune. The practice was criticized at the time for being rife with cases of extortion. Heart balm statutes were later attacked by feminists as antithetical to women’s sexual liberation. Eventually, most heart balm tort laws were rescinded.

While perhaps a step forward for equality, the removal of punishments for broken hearts also meant an age of caveat emptor had begun in the world of sexual relationships. For the first time, a promise of marriage was not a prerequisite for sex, and a broken promise of marriage was not an issue for the courts to consider.

Fifty shades of litigation

As the heart balm era fades, new types of sexual contracts have surfaced between non-married partners concerning the sexual acts themselves. In the bondage/sadomasochism (BDSM) community, for example, so-called contracts, whose structure and language mirror those found in legally binding agreements, are commonly utilized to establish power roles, safety words, and partner health status. While such contracts are probably unenforceable in court, they represent a moral commitment on the part of both the dominant and submissive partner.

As a lengthy article on the legality of BDSM contracts in the Harvard Law Review notes, these documents “underscore that, despite the seeming one-sidedness of the relationship, each party receives benefits and suffers restrictions, affording the consideration necessary for legal contract formation.”

In Charlie Sheen’s case, he is alleged to have broken numerous laws with his partners after the signing of sexual NDAs. His alleged transgressions include paying Scottine Ross $10,000 for sex on the first night they met, engaging in forced sex and other abuses, and consuming illegal drugs. Furthermore, Sheen’s NDA with Ross did not reveal his HIV status. Since contracts cannot legally be used to protect illegal activity, Sheen may be in for a bumpy ride in court.

A similar case embroiled the international ashram scene in 2010, when it was revealed that beleaguered religious leader Swami Nithyananda required his female applicants to sign NDAs to protect his organization’s “[tantric] use of sexual energy for increased intimacy/spiritual connection.” One of Nithyananda’s followers lost in a lawsuit to expose his organization’s alleged corruption and abusive treatment of women. Despite claiming that she had been repeatedly sexually assaulted by the swami over a period of five years, a United States District Court ordered Aarthi Rao to pay over $460,000 in damages to Nithyananda for libel and slander.

Nithyananda’s position in India is not so solid, where, in 2014, he resigned as head of his ashram amid a torrent of raids, arrests, and further accusations of rape, none of which have led to a trial. The sexual NDAs required of his female followers have yet to surface, neither as evidence of misconduct nor as a means of silencing the plaintiffs.

Just as it turned out hundreds of years ago, the sexual contract is proving to be an ineffective measure for regulating sexual intimacy. True, they can create symbolic safety measures by which individuals can progress into a sexual relationship with a sense of security (sexual consent forms are even trending on some American college campuses). But the same device can be used to silence, intimidate, or disenfranchise sexual partners.