Nanny state: Court in the act when consensual sex goes bad

Are we doing a disservice to women by ignoring their agency in relationships? Sexual power is nothing to sneeze at and the issue here is what flows from sexual freedom.

Imagine for a moment a fictional billionaire called Robert Black who from time to time offers women business advice in return for sex. Now imagine a fictional woman who from time to time offers successful businessmen sex in return for business advice.

In the absence of any other facts, what interest should our legal system have in their behaviour? Should the law of contract force Black to pay damages if he fails to provide the promised advice or if the advice is bad? And what of the quality of the sex? Will we need to measure whether the business advice was better than the sex? Should consumer protection laws demand that both be of reasonable quality?

I have used fiction to distance us from the real-life dramas surrounding WiseTech founder and billionaire Richard White. No reader of the news can presume to know the truth behind allegations and counter-allegations swirling around White.

Brazilian woman Caroline Heidemann claims White “made it clear that financial assistance was contingent upon” her “engaging in a personal and sexual relationship with him”. She alleges White created an “economic dependency” and engaged in “unlawful conduct for sexual gratification”.

In another case, now settled, former Real Housewives of Sydney contender Linda Rogan tried to set aside a bankruptcy notice that White issued against her over around $90,000. She claims the money was spent on furniture she bought at his request for a harbourside mansion he bought for her and her children to live in.

In court documents, the 55-year-old Rogan claimed she “realised that Richard expected me to enter into a sexual relationship with him to fulfil the promise that he would invest in my business. So … our relationship became sexual.” She claimed White brought bankruptcy proceedings against her after his partner discovered the secret relationship.

WiseTech founder Richard White and wellness entrepreneur Linda Rogan. Picture: NewsWire

The brouhaha has drawn laser-sharp attention to the tech billionaire and his judgment. Little focus has fallen on the women. Without drawing any conclusions about the rights and wrongs of these cases, we can still ask significant questions.

Should the legal system intervene in the messy, complicated business of relationships between lovers – more particularly, between former lovers? And should women use the law to seek redress when relationships didn’t pan out the way they planned?

Does female empowerment now rest on aggrieved women resorting to different forms of legal redress for messy relationships?

Or does empowerment come from owning, or at least walking away from, a dodgy relationship even if the money was good?

Cracking down on men’s bad behaviour has been long overdue. The #MeToo movement has its fair share of excesses, but it has succeeded magnificently in establishing that sexual harassment or abuse of power in the workplace is completely unacceptable today.

Less attention has been paid to similar forms of bad behaviour by women, but hopefully we will become gender-free in our attention span and judgments about anyone who abuses their position of power.

Putting aside black-and-white cases of demonstrably egregious behaviour, there is a large question about whether we have simultaneously trodden with clodhopper boots through all the nuances and complexities of today’s private relationships. By focusing on the overt power of men, have we done a disservice to women by ignoring their agency in human relationships?

Sexual power is nothing to sneeze at. Some women exercise it at work and at play, and in the grey crossover area, though they might prefer that we didn’t say so.

Was there not an ounce of agency from any of the women who succumbed to Harvey Weinstein’s sleazy behaviour? Rape is a serious crime. I’m not talking about non-consensual sex. Instead, the issue is what flows from sexual freedom. Once sex was untethered from marriage and procreation, consensual sex-for-casting might be an entirely legitimate transaction between an ugly and powerful Hollywood movie producer and young starlet, certainly if the starlet got the roles she wanted. Much like other trades that people make in their personal and professional lives.

Was there not an ounce of agency from any of the women who succumbed to Harvey Weinstein’s sleazy behaviour? Picture: AFP

The starting point is to recognise that even in the best relationships there is often a transactional element, even if we’d prefer not to acknowledge it. For every businessman wanting to swap business advice or offers of financial security for sex, there might be a woman – or many – wanting to swap sex for business advice, financial security or even marriage and a family.

Of course, these base facts are often shrouded or even overridden by romance, companionship, religious belief and other altruistic and noble impulses. We don’t like to admit animal instincts and evolutionary needs are as close to the surface as they really are.

We particularly dislike having to acknowledge that whatever ignoble instincts may have contributed to the start of a relationship, a mutually agreed outcome will usually trump slightly disreputable beginnings.

And the opposite is also true: a bad ending may turn the most romantic start into threats of litigation or a juicy serve of untested allegations in the media, or both, especially against a high-profile man.

In the interests of evening up the analytic score between the sexes, then, I must ask this question: for some women left distraught or angry after a break-up, is the biggest predictor of threats of lawfare and seeking media attention the absence of a wedding ring or some other expected outcome? Would we hear about business-for-sex allegations if the woman involved gets what she wanted – a successful business or the rich bloke, or maybe both?

We are admirably tough on men who behave badly but often don’t ask the hard questions about women. At what point is a woman responsible for her sexual choices, and honest about them?

Last week I plopped myself down in a chair next to a larrikin-looking chap at a big event. We chatted. I asked what he did. He said he was a gold-digger.

I laughed loudly. He was a miner. And then we laughed some more because there are some things a woman cannot say.

Many years ago, a friend of mine was cleaned out by a much younger woman. He led a glamorous life: boats, travel, big houses, groundbreaking career, hefty bank balance. She was young and pretty, and, to his friends, had “miner” written all over her. He told me once he liked to walk into a restaurant with a trophy on his arm. Fair enough.

She had clearly planned her departure from their relationship – for after the arrival of a large engagement ring. She was secretly prepaying from his bank account for future cosmetic dental work and other large expenses that would make her prettier. After it ended, he was philosophical, laughing one day to me that the sex was worth it. Both walked away with big smiles.

We don’t have breach of promise actions any more. That legal suit dates back to a time when women really did need a husband to have money and a good reputation. A broken promise of marriage could wreck their lives.

There was also a tort of seduction, available to a father, mind you, whose daughter had been seduced by a lecherous man. The father was seen as suffering damage to his property – his daughter.

Breach of promise of marriage was abolished by section 111A of the Marriage Act because it was seen as an anachronistic hangover of the days when a jilted woman could be regarded as unmarriageable or otherwise left damaged according to the law by a cad who walked away from a marriage proposal. The age of women’s liberation and sexual freedom put that to bed.

Are legal fights and media stunts by aggrieved women becoming the modern equivalent of the old breach of promise action? Are some women, no doubt hurt by a breakup, trying to roll back equality of the sexes when it is profitable to do so?

Surely we should get lawyers off our dating sites, and most emphatically out of our bedrooms. Picture: iStock

Remember, we are talking here about relationships that have not reached talk of meeting at the altar or even living together. Married women and women in de facto relationships know the Family Court will likely give them their fair share of marital assets if the relationship breaks down.

But if an early-stage relationship breaks down, should a court be drawn into disputes about sexual transactions made between consenting adults? Some seem to think so. In Courting: An Intimate History of Love and the Law, Alecia Simmonds, a lecturer from University of Technology Sydney, asked: “Why does the law assume people in intimate relationships do not intend to create legal relationships and what does it take to rebut this? Why, given all that we know about the suffering people experience when their romantic partners or family members deceive them – the depression, anxiety, financial loss, bodily injury and sometimes suicide – does the law insist that these harms are beyond legal remedies? And in what ways do women bear the brunt of the law’s reluctance to go beyond the front door of the house?”

We don’t know whether feminist advocates of this kind of intrusion into our private relationships want laws that penalise bad behaviour only by men or whether their heavy handedness will also be even-handed.

But it’s a safe bet that it will be bad for all of us. Even if it applies equally to men and women, it will mark the arrival of the nanny state in our bedrooms and living rooms, an intolerable acceleration of the race to install the moral equivalent of the Stasi in private lives.

It will reduce to legal formulas, to witness statements, affidavits and courtroom demeanour all the messy but also at times heartwarming parts of human relationships. It’s already risky enough for both sexes (but especially young men) to do what men and women have done for millennia, namely get drunk and have sex, but will we see relationships soon begin only after signatures have been added to mutual disclaimer forms?

Remember that in addition to family and de facto laws, plenty of other laws penalise undue influence in vulnerable relationships and misleading conduct in trade or commerce. So, a dating site that falsely advertises the number of people using the website can be sued because it is operating in trade or commerce. But should we be able to sue the dating site user who describes themselves falsely as witty or good in bed?

Surely we should get lawyers off our dating sites, and most emphatically out of our bedrooms.