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Friday, December 4, 2009

“The Couch of Restitution” (Or, The Devil and the Deep Blue Sea vs. The Devil in Miss Jones)

In a previous blog (feels like ages ago—I really must get out from under this blizzard of work!) I discussed the alienation of various aspects of human capacities and attributes, among them the sale of sexual services and the sale of "caring." I noted that, as per Professor Margaret Jane Radin, one significant reason for banning the sale of sexual services is the notion that commodification of this deeply intimate, personal human capacity could ultimately lead to dehumanization. This is true even in many cases where the seller of the sexual service ostensibly has a choice in whether or not to place her or his body into commerce. All too often "choice" is a slippery concept, and is strained to breaking in situations where the chooser has few viable options.

Consider a recent article in the ABA Journal that describes the case of a lawyer who allowed some clients to discharge legal fees by joining him on what he called his "couch of restitution" for sexual activity. After a client complained to the attorney ethics board in her state, ultimately the Michigan Attorney Discipline Board reviewed the matter and sanctioned the attorney by suspending his license to practice for 180 days. More than one client, had, in fact, complained to authorities that the lawyer had offered them the "couch of restitution" in exchange for legal services. According to the ABA Journal, the board opinion noted, "The high degree of similarity of these separate accounts established respondent's system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees."

It is perhaps not a surprise that women seeking assistance in domestic matters from mostly male lawyers might be asked to perform sexual services in exchange for a benefit. I first heard of such a thing years ago as a young college student when a middle-aged woman of my acquaintance shared with me all of the details of her sex-for-legal-services exchange with her divorce lawyer. I was horrified—I neither wanted to believe that this sort of thing happened nor that it had happened to someone I knew. This woman was a well-established suburban matron whose separation and pending divorce from her abusive husband had left her with few reserves of either money or self-esteem. She was, it seems, an ideal target. Back then I wrote her lawyer off as an abusive weirdo who represented few members of the legal profession. It turns out, though, that the woman that I spoke to is not alone: one scholar cited a nationwide survey of attorneys showing that 32 percent of the respondents answered that they knew at least one attorney who had engaged in sexual relations with a client. A posting to another blog late last spring, Above the Law, describes another lawyer recently sanctioned for trading legal services for sex.

This sort of thing, it turns out, cuts across professions—for instance, the "casting couch," where hopeful actresses perform sexual services for movie producers and directors, is the stuff of legend. Even in today's post feminist employment climate, successful women are sometimes derided as having "slept" their way up the corporate ladder, whether they did so or not. And last, but not least, stories of female students who exchange sexual favors with male professors for higher grades are still very much a part of the academic landscape, university faculty conduct codes notwithstanding. Part of the barrier to ending these types of behaviors is the way in which this sort of sexual favor trading is viewed in not only in specific professions but by society as a whole. Women who participate in such exchanges are sometimes viewed with scorn and derision, dismissed as calculating hussies who knowingly, willingly, and gladly choose to trade sex rather than money for desired benefits. In contrast, the men who accept the sexual pay outs are rarely subjected to public opprobrium and not very often held otherwise accountable; they are sometimes even lauded by locker-room style banter . This is no less true in legal settings. Just review the comments posed after the ABA Journal article linked above. One poster seems to call women who have made such trades with their lawyers "restitutes," a pun on prostitutes. Other posters mocked the fact that the complainer who initiated the matter complained only after she exchanged sexual services yet still received a bill. Very few postings evinced any sympathy or concern for the women involved.

Acknowledging that sexual contact between lawyers and clients is an ongoing and serious problem, in 2002 the ABA drafted a rule explicitly barring sexual contact between attorneys and their clients in certain contexts. Drafters cited the inherent power imbalance of the lawyer-client relationship, an imbalance that easily leads to the exploitation of clients by attorneys. Nonetheless, such abuses continue, as they occur in settings where few victims are willing to come forward. Especially for women seeking legal counsel in domestic matters, if the choice is between sexual activity with a lawyer or continuing on in a difficult domestic situation, it's the choice between the Devil and the deep blue sea. Or is it, as some would have it, the "Devil in Miss Jones?" that is the apt metaphor here?