Crim Law and Philos

DOI 10.1007/s11572-013-9290-1

ORIGINAL PAPER

Nussbaum on Sexual Instrumentalization

Michael Plaxton

 Springer Science+Business Media Dordrecht 2014

Abstract In ‘‘The Wrongness of Rape’’, Gardner and Shute argued that the English
offence of rape primarily targets the wrong of objectification. They tie objectification
closely to instrumentalization—to the ‘‘conversion of subjects into instruments or tools’’.
In doing so, they explicitly purport to follow Nussbaum’s understanding of what is morally
problematic about objectification. In this paper, I want to explore more closely just what
Nussbaum understands by instrumentalization, focusing in particular upon the meaning
and role of mutuality in her analysis. Doing so gives us insight into why sexual touching in
three broad contexts may not be considered instances of instrumentalization: spontaneous
sexual touching in a romantic context; non-spontaneous sexual touching in the context of
intimate relationships; and prostitution. The last point may be most controversial given
Gardner and Shute’s own stated view that prostitution involves instrumentalization. Even
when we look to sexual touching in intimate relationships, however, Nussbaum seems to
introduce ideas of implied consent that appear nowhere in Gardner and Shute’s paper.

Keywords John Gardner
Stephen Shute
Martha Nussbaum
Rape

Objectification
Instrumentalization
Prostitution

Introduction

In ‘‘The Wrongness of Rape’’, Gardner and Shute argued that the English offence of rape
primarily targets the wrong of objectification.1 As they put it: ‘‘That a rapist objectifies his

1
John Gardner and Stephen Shute, ‘‘The Wrongness of Rape’’ in Jeremy Horder, ed., Oxford Essays in
Jurisprudence, Fourth Series (Oxford 2000). The paper has been reproduced in John Gardner, Offences and
Defences: Essays in the Philosophy of Criminal Law (Oxford 2007). See also Carolyn M. Shafer and
Marilyn Frye, ‘‘Rape and Respect’’ in Mary Vetterling-Braggin, Frederick A. Elliston, and Jane English,
eds., Feminism and Philosophy (Littlefield, Adams & Co., 1977).

M. Plaxton (&)
College of Law, University of Saskatchewan, 15 Campus Dr, Saskatoon, SK S7N5A6, Canada
e-mail: michael.plaxton@usask.ca

123
 Crim Law and Philos

victim by treating her as a mere repository of use-value is, in our view, what is basically
wrong with rape.’’2 Gardner and Shute tie objectification closely to instrumentalization—to
the ‘‘conversion of subjects into instruments or tools’’.3 In doing so, they explicitly purport
to follow Martha Nussbaum’s understanding of what is morally problematic about
objectification.4 Nussbaum observes that one may objectify another in one of several ways.
But it is instrumentalization –understood narrowly as the mere use of another person—that
she regards as the most inherently troubling.5
Gardner and Shute’s claim that the offence of rape primarily addresses the wrong of
objectification risks proving too much. Objectification is rife in our culture. Why focus on
rape, rather than objectification in its many other forms? Gardner and Shute recognized this
problem, and purported to explain how penetration sets rape apart as an especially brutal,
humiliating form of objectification.6 But what leaps out from Gardner and Shute’s analysis
is not the idea that rape is an especially problematic form of objectification. What is
striking is that Gardner and Shute engage in little explicit discussion of what does not count
as instrumentalizing sexual touching. For our purposes, it is significant that Nussbaum
herself does not regard the kinds of objectification that occur in the sexual context as
necessarily instrumentalizing and, therefore, as morally problematic. Indeed, she is pre-
pared to conclude that objectification ‘‘might be a wonderful part of sexual life.’’7
In this paper, I want to explore more closely just what Nussbaum understands by
instrumentalization, focusing in particular upon the meaning and role of mutuality in her
analysis. Doing so, I argue, gives us insight into why sexual touching in three broad
contexts may not be considered instances of instrumentalization: spontaneous sexual
touching in a romantic context; non-spontaneous sexual touching in the context of intimate
relationships; and prostitution. The last point may be most controversial given Gardner and
Shute’s own stated view that prostitution involves instrumentalization. Even when we look
to sexual touching in intimate relationships, however, Nussbaum seems to introduce ideas
of implied consent that appear nowhere in Gardner and Shute’s paper.

Instrumentalization and Consent

In a particularly interesting part of ‘‘Objectification’’, Nussbaum scrutinizes a passage from

DH Lawrence’s The Rainbow,8 in which we might think that the character of Tom
Brangwen has objectified Lydia. Nussbaum ultimately concludes that this is, all things
considered, morally unproblematic. Whether she is right in thinking so is, for my purposes,
less interesting than her reasons. Nussbaum states:
Why is Lawrentian objectification benign, if it is? We must point, above all, to the
complete absence of instrumentalization, and to the closely connected fact that the

2
Gardner and Shute, ibid. at 204.
3
Ibid. at 204.
4
Ibid. at 204–205.
5
Ibid. at 257, 265.
6
Ibid. at 209–212.
7
Martha Nussbaum, ‘‘Objectification’’ (1995) 24 Phil. & Public Affairs 249 at 274, referring to Cass R.
Sunstein, Review of Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for
Women’s Rights (New York: Scribner 1995), The New Republic, 9 January 1995.
8
DH Lawrence, The Rainbow (Penguin, __).

123
Crim Law and Philos

objectification is symmetrical and mutual—and in both cases undertaken in a context

of mutual respect and rough social equality.9
For Nussbaum, the mutuality and symmetry in Brangwen and Constance’s objectification
of each other is a strong reason for concluding that the use of one by the other is not a case
of ‘mere use’. In the following sections, I examine Nussbaum’s analysis, and consider why
the symmetry and mutuality of objectification might make a difference to the moral
standing of at least some instances of sexual touching. In this section, I want to focus on a
preliminary question: why dwell on mutuality rather than consent in the first place?
Nussbaum is not perfectly clear about the conceptual relationship between consent and
instrumentalization. At times, she suggests that consent is capable of transforming other-
wise instrumentalizing conduct into something that is morally permissible.10 But all in all,
her focus is not on consent, but on mutuality. As we will see, Nussbaum appears to suggest
that the sexual touching of a sleeping partner can be non-instrumentalizing, though there is
no opportunity to give express consent to the particular touching in issue, so long as
conditions of mutuality exist. More generally, however, consent plays a relatively minor
role in Nussbaum’s analysis of objectification. There is, for example, little mention of the
fact that Lydia consents to Brangwen’s touching in Nussbaum’s analysis. That may be
because, to any reader of the novel, Lydia’s consent seems obvious. But it seems like a
curious omission in a work that uses literary passages as a means of fleshing out what it
means to engage in benign objectification.
What, then, is going on here? The question is especially salient when we remember that
Nussbaum’s analysis informed that of Gardner and Shute. By saying that the core wrong of
rape lies in the instrumentalization of the victim, they also appeared to give consent a lesser
role. That has rankled a number of commentators. John Stanton-Ife, to take one prominent
example, claims that this account fails to explain our intuition that non-consensual sexual
penetration is wrongful even when it is ostensibly for the victim’s ‘own good’11:
There are many potential cases in which a rape has taken place, with all that implies
in terms of seriousness and stigma, but the victim has not been sheerly used, has not
been treated as a mere means. Consider first cases in which the rapist does not
believe that the victim consents. Many films contain dubious scenes in which men
force themselves on resisting women, only for the woman’s resistance to dissolve
and transform into enthusiastic participation. This can express or encourage the
belief that the woman’s non-consent is merely a temporary obstacle which it is in her
interests that the man should overcome. Alternatively, imagine a gay man who
forcibly penetrates a heterosexual male friend on the grounds that the latter is
repressed and is denying his own true sexuality, and must be shown this for his own
good; or a heterosexual man setting out to ‘save’ a lesbian woman by proving to her,
against her protestations, that she will enjoy sex with a man and never look back.12
The problem with rape, Stanton-Ife argues, is simply that the victim’s consent is
lacking. Whether or not the victim has been ‘‘merely used’’ is beside the point.

9
Nussbaum, supra note 7 at _.
10
Ibid. at 265.
11
John Stanton-Ife, ‘‘Horrific Crimes’’ in Duff et al., eds., The Boundaries of the Criminal Law (Oxford
2010).
12
Ibid. at 154.

123
 Crim Law and Philos

Stanton-Ife’s objection, I will argue, misses the mark precisely because the examples he
deploys do involve mere use in Nussbaum’s sense. Leaving that aside for a moment,
though, is there any point in looking to instrumentalization rather than to the absence of
consent? I think so. The reason is that consent arguably functions in two very different
ways. Sometimes, it makes otherwise wrongful conduct morally permissible. At other
times, it merely licenses others to engage in wrongful conduct. In determining how consent
is operating, it seems important to know whether it is being given to an instrumentalizing
course of action. If you and I both treat me as an instrument for your ends, we are surely
not engaging in a morally permissible line of conduct. We have made the same moral
mistake, regarding me as something less than an autonomous agent. But it is no less a
mistake. Nonetheless, we might say that the law must give effect to my consent to your use
of me if it is to treat me as an autonomous moral agent. This is why, in Gardner and Shute’s
view, the prostitute’s consent should be given legal effect.13
Because consent functions in different ways at different times, we are liable to misread
its significance. Not every exercise of consent serves to license a wrong, but we are apt to
think so if we simply assume that every instance of sexual touching is instrumentalizing.
Yet the criminal law does not take such a perverse view of sex and sexuality. Nor does it
claim that every exercise of consent makes sexual touching morally blameless. Perhaps one
has low self-esteem—a sense that one is unworthy of having ends of one’s own, or is only
good for providing sexual gratification to others. She may still be able to consent. Yet the
person who comes along and exploits her degraded self-image for his own gratification
does not—and should not—get a moral pass. He has not acted criminally; he has not raped.
But we should be clear about the fact that he is not a criminal only by virtue of the legal
authority she has wielded. Doing so allows us to cast a disparaging yet tolerant eye toward
the exploiter, while affirming that the exploited deserves both our compassion and our
respect as an autonomous agent. When we key in on instrumentalization, we make it
possible for the criminal law to express a more nuanced and complex view of sex and
sexuality than an appeal to consent alone would allow.
I suspect that something very like this line of reasoning is going on in Nussbaum’s
analysis as well. Nussbaum has, at various points in her body of work, expressed a concern
for not just the form of consent, but its substance. Thus, in both Women and Human
Development and Frontiers of Justice, she considers the ways in which women can have
‘‘distorted preferences’’ resulting from a lack of educational opportunities.14 This affects
the extent to which their ‘‘consent’’ to various practices is capable of legitimating them. At
the same time, Nussbaum has emphasized that the ability to use one’s practical reason is
central to living a well-off life. Indeed, it is precisely this which distinguishes her
‘‘capabilities approach’’ from the work of other Aristotelians (like John Finnis) who
emphasize ‘‘functioning’’.15
To a point, Nussbaum’s concern with mutuality simply reflects the fact that ‘‘consent’’
is morally significant only when certain conditions (like socio-economic parity) are sat-
isfied. But it also shines a light on what is reasonable about consent in certain conditions—
on the fact that it reflects reasonable choices about how one should live. It shows us why it
might be reasonable, even desirable, to surrender autonomy to a degree. That matters

13
Gardner and Shute, supra note 1 at 206–9.
14
Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, 2000)
at 119–22; Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Har-
vard, 2006) at 73.
15
Women and Human Development, ibid. at 87.

123
Crim Law and Philos

greatly to Nussbaum’s analysis of objectification, which in her view can be benign even
when it is inconsistent with perfect autonomy.

Desiring the Embodied Person: Mutuality as Open-ness

It is tempting to think that our relationship to our bodies is simply that of an owner to her
property.16 We often act as though our bodies are separate from our core selves, things that
are ours to use but not reducible to us. Furthermore, we tend to treat our homes and
belongings as if they define our identity, and to compare experiences of burglary to that of
rape.17 Reasoning from both directions, it would not be unusual for one to conclude that
our bodies are just another kind of property—less alienable and more personal than our
other possessions, but not fundamentally different.
But that view, as Gardner and Shute observed, has troubling implications. It suggests
that the person who was not ‘using’ her body, because she was asleep or unconscious, was
not wronged in more than a technical sense when a rapist decided to use it for his own
ends.18 No victim of rape, moreover, would compare her experience to that of a victim of
burglary or theft,19 and for good reason. Her body is not just a tool or piece of property that
she uses; it is a part of who she is. Rape is so deeply offensive to the dignity of a human
being because it is not just her body that is used—it is her. Roger Scruton has made a
similar point: it is, he argues, impossible to ‘‘perceive the true horribleness of murder,
torture, and rape’’ without appreciating that the human body is not just an instrument, but
an embodiment of a moral agent.20
The fact of embodiment is not only central to understanding the wrongness of rape; it is
key to understanding sexual pleasure and desire. As Scruton, Nagel, Blackburn, and
Nussbaum have all argued, the pleasure we take in our partners as we kiss and caress them
is in part the pleasure of imagining their subjective experiences, and therefore draws upon
an appreciation of them as agents.21 Much of sexual pleasure is, as Scruton would say,
‘‘intentional’’—it is the pleasure we have at pursuing a meaningful activity with another
who will recognize its significance and welcome pursuing it with us.22 We imagine a
partner attuned not only to his or her physical sensations, but to the intentional content of

16
See Richard Posner, ‘‘An Economic Theory of the Criminal Law’’ (1985) 1193 at 1199; Donald A
Dripps, ‘‘Beyond Rape: An Essay on the Difference between the Presence of Force and the Absence of
Consent’’ (1992) 92 Columbia L Rev 1780 at 1789. See also Guido Calabresi and Douglas Melamed,
‘‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’’ (1972) 85 Harv L Rev
1089 at 1100–1101, 1125–1127, and the discussion in Margaret Jane Radin, ‘‘Market-Inalienability’’ (1987)
100 Harv L Rev 1849 at 1879-81; Gardner and Shute, supra note 1 at 199–203. For a benign example,
Oliver Sacks, The Man Who Mistook His Wife for a Hat (Picador, 2011 [1986]) at 47 (speaking of
proprioception, a term which itself evokes notions of ‘property’, as the experience of ‘‘owning’’ one’s body).
17
Gardner and Shute, ibid. at 201–202.
18
Ibid. at 204.
19
Ibid. at 203.
20
Roger Scruton, Sexual Desire: A Moral Philosophy of the Erotic (Free Press, 1986) at 251.
21
This point helps to explain Nussbaum’s rejection of the Kantian view that sexual touching is inherently
instrumentalizing because it necessarily involves reducing one’s partner to a body to be used for one’s own
pleasure. Consider the analysis by Barbara Herman, ‘‘Could It Be Worth Thinking About Kant on Sex and
Marriage?’’ in Louise Antony and Charlotte Witt, eds., A Mind of One’s Own: Feminist Essays on Reason
and Objectivity (Boulder: Westview 1993); Nussbaum, supra note _ at 266–267; Simon Blackburn, Lust
(Oxford 2004) at 94–95.
22
Scruton, supra note 20 at 18.

123
 Crim Law and Philos

the acts producing them; a partner who recognizes our intentions towards him or her, and
who has intentions towards us. In Nussbaum’s review of Scruton’s work, and in her own
work on sexual objectification, Nussbaum made it clear that she agrees with his (and
Nagel’s) understanding of sexual desire as an intentional pleasure.23
The claim that sexual pleasure is often intentional should not be confused with the
suggestion that sexual pleasure is based upon an appreciation of another’s voluntary
responses. Quite the contrary, many of the responses we most crave are involuntary.24
When we glance at someone from across a room, or make a flirtatious remark, we hope that
the object of our attentions will return them, not with a studied reply, but with a stammer or
an amused laugh or a blush or a smile—and, at the risk of putting too fine a point on the
matter, not a deliberate (which is to say, faked) smile, but a genuinely spontaneous
expression of delight.25
What makes these responses involuntary is that they are bodily—that the smile emerges
out of a joy that is felt and not willed; that the blush is a physiological response to a feeling
of embarrassment or exposure that, if anything, he or she might prefer to conceal; that the
need to return our kiss is, above all else, experienced as a physical compulsion. How we
understand their moral significance will depend, in part, on how we understand the rela-
tionship between a person and his or her body. If we take the view that the body is simply a
kind of property—that it is a tool used by the self—then we will be more inclined to think
of these responses as a subversion or overcoming of the person’s agency by the ‘passions’
and sensations of the flesh. The person who delights in his or her ability to manipulate
those sensations, in turn, begins to appear to be someone indulging in the pleasures of
power.
Our perspective changes if we understand the body as not only the property or
instrument of the self, but as partially constitutive of it. On this view, the smiles, blushes,
sighs, and aches we provoke are not simply animalistic responses which ignore the sub-
ject’s attitudes, beliefs, and values. They are not, that is, signs of a body rebelling against
its ‘master’. Rather, these responses themselves have cognitive content.26 The smile is not
a meaningless spasm of facial muscles, somehow caused by the glance in the same way
that a stomach cramp can result from eating too many dried fruits; the smile is directed at
the other’s glance.27 It reflects the knowledge of what that glance means—that he or she
finds me sexually interesting—and a judgment that this interest is welcome. The blush is
not a meaningless rush of blood to the cheeks. It shows that one cares what the other thinks
of him or her. It is, as Scruton says, ‘‘a kind of involuntary recognition of my account-
ability before you for what I am and feel.’’28 It may be precisely to learn whether our
feelings are important to another that we try to make eye contact with him or her in the first
place.29
The sexual pleasure to be had from involuntary responses, then, is closely tied to the
fact that it is, at least in part, an intentional pleasure, for it is through those responses that
we can see the other’s recognition of our intentions, and see whether that recognition is met
23
Martha C. Nussbaum, Philosophical Investigations: Reviews 1986–2011 (Oxford, 2012) at ch. 2.
24
Blackburn, supra note 21 at 88–9. See also Thomas Nagel, ‘‘Sexual Perversion’’ in Mortal Questions
(Cambridge 1979) at 50.
25
Blackburn, ibid. at 61.
26
See Martha Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge 1999).
27
Scruton, supra note 20 at 64.
28
Ibid. at 65.
29
Ibid. at 67, 70.

123
Crim Law and Philos

with interest or indifference, approval or rejection, excitement or disappointment, delight

or disgust. The other’s involuntary responses, in other words, may not fascinate us because
they establish a relationship in which we have power, but because they give us something
like an unmediated experience of him or her.30 They give us a means of exploring and
learning about another person. Such exploration, moreover, far from being an intelligence-
gathering exercise—acquiring information for the sake of making use of it later—may be
an end in itself. Understood in this way, our preoccupation with involuntary responses does
not boil down to a simple fetishization of power. Having imbued these responses with
cognitive content, we have not reduced the other to a collection of inert body parts,
or treated the other’s body as a piece of property to be ‘possessed’ and wielded. Rather, we
treat it as interesting and significant because it is constitutive of a person whose subjective
experiences themselves interest us. There is still an attitude of permeability, of thinking of
the other’s feelings as responsive to us, but not the threatening attitude that those feelings
are somehow ours to change as we please.
We may remain unconvinced that the other is treated as a fully autonomous being. The
very fact that the desired responses are involuntary suggests that he or she is not altogether
in a position of control over herself, that he or she has been ‘degraded’ as a moral agent.31
But we should hesitate to leap to that conclusion. We may, after all, acknowledge limits to
our and others’ self-control without thinking those limits shameful, and without regarding
the influence we have over others’ physical and emotional states as a sign that we are
somehow better or more fully human than they are, or as a sign that we are in a some sense
a master over them. We may instead note that, as human beings, our well-being is subject
to forces not altogether within our control, and that far from being a sign of weakness or a
mark of shame, the lack of control we have over our feelings and their physical mani-
festation speaks to what it means to be a person.32 Rather than (to use Nussbaum’s phrase)
‘hide from our humanity’, rejecting the idea that we can be both competent moral agents
and embodied creatures with frailties, cares, and turn-on, we would do better to embrace
our physical selves, our softness and receptiveness to others and to the wider world.33
Scruton, in fact, has argued that it can be through sexual desire that we begin to
appreciate persons as embodied moral agents.34 And Nussbaum has suggested that our own
autonomy may be enhanced when we come to accept our embodiment; that we will be
readier to enjoy the pleasures and intimacies of sexual life, to exercise our sexual auton-
omy, if we cease to treat our sexual responses as degraded or ‘dirty’.35 With this in mind,
Nussbaum tentatively argues that the kinds of sexual play in which lovers frequently
engage—focusing attention, for example, on each other’s genitals, attributing personalities
to them and even naming them—need not be degrading at all. It may seem, in such cases,
that one’s partner must have been reduced to a body part—indeed, that it is the body part
and not the person which interests us. But that ignores the fact that we are able to play in

30
Ibid. at 92.
31
On the relationship between autonomy, self-governance, and ‘‘permeability’’ or ‘‘violability’’, see Sarah
Buss, ‘‘Valuing Autonomy and Respecting Persons: Manipulation, Seduction, and the Basis of Moral
Constraints’’ (2005) 115 Ethics 195 at 195–196.
32
See Nussbaum, Upheavals of Thought, supra note 26.
33
See Martha Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton 2004). See also
Nussbaum, ibid.; Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (___);
Nussbaum, Not for Profit: Why Democracy Needs the Humanities (Princeton 2010) at 38–40.
34
Scruton, supra note 20 at 251.
35
Nussbaum, supra note 7 at 277–278.

123
 Crim Law and Philos

this way, able to attribute independent personalities and identities to our partner’s body
parts, only because they respond involuntarily. That can be a source of delight for us
because it teaches us something about our partner that even he or she may not have known,
or know only as a ‘spectator’. Taken in this spirit, there is nothing mocking or degrading in
this kind of play and, in the idea that one can share delight in a body that is at once one’s
own and yet responsive in ways we cannot always anticipate, one may well find it
reassuring.36
We are still some way from being able to conclude that sexual activity need not be
objectifying in a morally problematic sense. Even if one sees another’s body as constitutive
of her personhood—rather than a thing to be possessed—we may still have instrumen-
talization to the extent that one sees the person herself as a thing to be used, and not as a
being capable of meaningfully touching him or her ‘in return’. It can be a wonderful thing
when two people feel free to explore and enjoy each other as embodied creatures. It is
another matter altogether when one person explores and enjoys the embodied personality
of someone who is not free to reciprocate. In the latter case, the asymmetry of power as
between the two parties, one permeable and vulnerable, the other inscrutable and in
control, not just of him or herself but of the other, transforms the nature of the act. It
suggests that one’s vulnerability to the other is indeed something shameful, that my
amusement at your involuntary responses is at your expense and not a pleasure that we can
share as equals. What may yet be missing is a sense of trust, a sense that I do not regard
you only as a specimen, amusement or toy—as something to be consumed—but as
someone to whom I am, in a sense, open.
Our experience of seduction and flirtation confirms the difference that this kind of
mutuality makes to us. The reaction we have to the seductive glance or touch or kiss of
another depends in no small part on our perception of it as involuntary. We may delight in
a double-take, or a smile that seems too broad to be calculated, or an absent-minded hand
on our arm. If we imagine the same look or smile or hand, this time rehearsed or con-
sciously aimed at us, we may find it decidedly less pleasing or attractive. We are more
likely to find it pathetic, ridiculous, or predatory. Thus, Ovid observed that the art of
seduction requires one to at least project an image of powerlessness in the face of one’s
own desire for the other. Along similar lines, Scruton remarks: ‘‘[T]he caress and the
glance must not reveal premeditation:… truly arousing conduct is that in which the
awakening of the woman seduced is made to seem like a mutual self-discovery, so that she
seems, in her own eyes, to be responsible for what he feels.’’37 It is ordinarily because we
have a sense of mutual vulnerability, permeability, and powerlessness that we are able to
experience sexual activity (broadly construed) as an experience of intimacy and con-
nectedness, a sense that our embodied selves are connected in a way neither of us can
control. In how you experience me, you reveal something about yourself that is fascinating
to me. My fascination, in turn, reveals something about myself, giving you something new
and provocative to dwell upon. And so on. We are excited by, as much as anything else, the
experience of ourselves in a ‘‘cooperative enterprise, in which I and the other evolve within
each other’s perspective, changing for each other and through each other, with a constant
and reciprocal anticipation of our mutual intentions.’’38 In that context, our permeability,
and the loss of what we might perceive as autonomy, ceases to strike us as threatening and
instead becomes something wonderful and liberating.
36
Ibid. at 276–267.
37
Scruton, supra note 20 at 25.
38
Ibid. at 30.

123
Crim Law and Philos

The distinction between treating the body as constitutive of another’s personhood rather
than a tool to be used in itself provides an answer to Stanton-Ife’s objections to Gardner
and Shute. He wanted to say, remember, that one person can rape another without treating
his victim as a mere means. But the examples he deploys to make this point are precisely
situations in which the rapist treats the victim’s body as nothing other than a tool for
manipulating and overcoming her will. There is nothing like the sort of mutuality one finds
between two lovers whose personalities are briefly intertwined. The touching is far too
calculated and one-sided for that. Instead, we have only the relationship between one who
dominates and one forced to submit. (Nor, it is worth observing, is there anything to
suggest that there is mutuality in any other sense in Stanton-Ife’s examples.)

Mutuality as a Guarantee of Consent

The above might seem to suggest that spontaneity is central not only to our experience of
sexual pleasure, but to benign objectification on Nussbaum’s understanding—that sexual
objectification can be a positive experience only in the heady moments of a budding romance,
when the fascination of the parties with each other is at its peak, and not in a well-established
relationship. But of course that is not the case. It is the experience of oneself as part of a
cooperative enterprise that allows us to find fulfillment in the loss of autonomy. That expe-
rience may emerge spontaneously, but it need not. Two people who have been intimately
involved with each other for a long period of time may, for example, set aside a specific time
for love-making, or fall into a habit of caressing each other at bedtime. There is nothing
spontaneous in this sexual touching, and their mutual caresses may reflect little by way of
wonder. Because the pair know in advance, without having to say so, that they are committed
to each other, their touching can convey an attitude of tenderness towards each other.
In ‘‘Objectification’’, Nussbaum suggests on several occasions that the background
relationship between the parties can affect whether we see a particular instance of touching
as instrumentalizing. In her discussion of Brangwen and Constance, Nussbaum observes
that it is not only the symmetry and mutuality of their desire at the moment, but also the
mutuality in their relationship generally that matters.39 In an attached footnote, she sug-
gests that we can infer mutuality in their relationship from their socio-economic parity:
‘‘[A] working-class man in England of that time’’, she remarks, ‘‘is roughly comparable in
social power to an upper-class woman.’’40 Inasmuch as both Brangwen and Constance
consent, and are not in a position to dominate the other through the exercise of social
power, we can conclude that neither engages in the mere use of the other.
As this suggests, in determining whether mutuality exists, it is necessary to look not
only at the immediate circumstances surrounding the sexual activity in question but at the
wider relationship between the parties (assuming one exists), and their relative social
standing.41 A street prostitute may appear to objectify her john just as surely as he
objectifies her. (Indeed, johns frequently want a prostitute to simulate an experience of
intimacy.)42 But any reciprocity is purely superficial: both know that it is only she who
must trust him. He may do what he pleases, and needs only to suspend his disbelief that she

39
Nussbaum, supra note 7 at 275.
40
Ibid. at 275n.
41
Ibid. at 275.
42
See Blackburn, supra note 21 at 108–9.

123
 Crim Law and Philos

has genuine interest in him.43 It is for this reason that, although Nussbaum refuses to regard
prostitution as inherently objectionable, her defense of the practice is grounded in the fact
that it is at least hypothetically possible for there to be rough socio-economic parity
between johns and prostitutes, and for there to be regulatory mechanisms in place that can,
as it were, level any power imbalance between them.44 For their part, Gardner and Shute
likewise make the point (albeit in a footnote) that the objectionable nature of prostitution is
in part tied to an absence of regulation and employment protection—to the vulnerability of
sex workers to the domination of their johns.45
Likewise, the sexual encounter between partners in a long-term relationship may be
pernicious rather than nurturing. We may, on close inspection of their relationship, find that
he does not take her seriously as a person with ends of her own, and that she remains in it
only because she believes she has no other options. Under those circumstances, we may be
inclined to see his pleasure at the involuntary responses he provokes as just one more way
in which he exercises power over her, mocking her autonomy (even without necessarily
being aware that he is doing so).46

Mutuality and Loyalty

So far, it seems that broader mutuality is important primarily because it guarantees that the
parties in a position to give meaningful consent. But consider this passage:
[I]nstrumentalization does not seem to be problematic in all contexts. If I am lying
around with my lover on the bed, and use his stomach as a pillow there seems to be
nothing at all baneful about this, provided that I do so with his consent (or, if he is
asleep, with a reasonable belief that he would not mind), and without causing him
pain, provided, as well, that I do so in the context of a relationship in which he is
generally treated as more than a pillow. This suggests that what is problematic is not
instrumentalization per se, but treating someone primarily or merely as an instru-
ment. The overall context of the relationship thus becomes fundamental…47
In her parenthetical remarks, Nussbaum makes it clear that somewhat instrumentalizing
conduct can be benign even if the person used is asleep at the relevant time, and therefore
in no position to offer conscious, ‘active’ consent. The moral touchstone under those
circumstances is not my consent, but your belief that, if I was awake, I ‘‘would not mind’’.
What is striking about this is not only the suggestion that your use of me can be morally
benign when I am not able to give ongoing consent. It is that, in the example provided, it
would be obvious to you that (being asleep) I am unable to give consent in a robust sense.
This suggests that mutuality, in the context Nussbaum describes here, cannot find its

43
See Gardner and Shute, supra note 1 at 206–7.
44
Martha Nussbaum, ‘‘‘Whether from Reason or Prejudice’: Taking Money for Bodily Services’’ in Sex
and Social Justice (Oxford, 1999) at 281–2.
45
Gardner and Shute, supra note 1 at 207, n25.
46
It is in this sense that the work of Catherine MacKinnon and Andrea Dworkin has particular resonance.
They are right to argue that a culture of objectification can taint sexual relationships between men and
women. See Catharine MacKinnon, Only Words (Harvard, 1993). See also the reasoning in R. v Butler,
[1992] 1 S.C.R. 452. MacKinnon contributed to the submissions by LEAF, which influenced the Court.
MacKinnon and Dworkin qualifiedly endorsed the ruling: Catharine MacKinnon and Andrea Dworkin, eds.,
In Harm’s Way: The Pornography Civil Rights Hearings (Harvard 1997) at 4n.
47
Nussbaum, supra note 7 at 265.

123
Crim Law and Philos

significance in the fact that it guarantees that the parties are able to give ongoing consent—
since, presumably, its moral importance would in that case also hinge on whether it was
actually given. (It is difficult to see how else it could matter.) Furthermore, the example
suggests that conduct can be non-instrumentalizing even where there is no symmetry or
mutuality between the parties at the moment when the touching occurs: obviously, I cannot
be fascinated by you while I am asleep and oblivious of you.
Many would intuit that it cannot always be morally objectionable to touch one’s sleeping
partner.48 Those intuitions get hazier when we imagine it as sexual touching, but even here
much depends on how broadly one construes ‘‘sexual’’: an unexpected kiss on the neck or
squeeze of a thigh might be regarded as sexual (or sexualized) signals of intimacy and
affection, and intuitively it seems to make a moral difference that the couple have one kind
of relationship rather than another. Indeed, there is arguably a sexualized dimension to
Nussbaum’s own example of using one’s partner’s stomach as a pillow. Whether we think so
or not, the fact that Nussbaum seems to allow for something other than active, ongoing
consent in a paper that is centrally about sexual objectification deserves some attention.
The first point one can make about the passage is that, although Nussbaum loosens her
grip on consent, she does not relinquish it altogether. Active and ongoing consent is not
necessary, but the touching in question must still fit within the range of expectations that the
touched individual would have given the nature of his or her relationship with the ‘objec-
tifier’. Since we are still supposing a degree of rough socio-economic parity, moreover, these
expectations should not be treated as impositions by one person upon another (along the lines
of ‘‘you can expect me to abuse or humiliate you’’). We should instead see them as the
expectations both have of how feelings of intimacy or affection will or can be conveyed in
their relationship given how each thinks it appropriate to do so. In a sense, we can say that
the touched individual has given ‘consent’. It is, however, not consent to the act of touching
itself, but consent to a set of norms that governs and defines the relationship. In the context of
aggressive touching inflicted in contact sports, where we can neither say that there is active,
ongoing consent, but where it again seems counter-intuitive to describe the contact as assault,
courts have sometimes said that there is ‘‘implied consent’’.49
But what about the fact that there seems to be no mutuality in the moment? Even here,
we should be careful. The mere fact that one’s partner is sleeping does not mean that the
person doing the touching is free to do whatever he wants for whatever reason he wants. In
an intimate relationship, there are norms governing not just what kinds of physical
touching are permissible, but under what circumstances, and for what reasons and with
what attitudes. Those norms do not vanish when one’s partner is unable to enforce them
any more than legal norms vanish when there is no policeman nearby.
Within the context of a long-term relationship in which the parties respect each other as
ends in themselves, a given sexual episode may be decidedly one-sided and yet mutual in
the relevant sense. My ends may be wrapped up with yours, such that my well-being does
not just provide you with reasons for action—for we could say that the well-being of
others, no matter who they are to us, should motivate us in one way or another—but

48
See the submissions of the accused in R v J.A., 2011 SCC 28 at para. 58.
49
See R. v Cey (1989), 48 C.C.C. (3d) 480 (Sask. C.A.); R v LeClerc (1991), 67 C.C.C. (3d) 563 (Ont.
C.A.). See also the discussion in Hamish Stewart, ‘‘Parents, Children, and the Law of Assault’’ (2009) 32
Dal. L. J. 1. But see R v Ewanchuk, [1999] 1 S.C.R. 330, where the Supreme Court rejected the suggestion
that implied consent applies to sexual touching.

123
 Crim Law and Philos

partially determines what other life-defining goals you pursue (and vice versa).50 You may
reject a home and career in another city, because my well-being depends on being close to
my friends and family, or on pursuing a career or an education that I can only have here.
Our relationships with others (for example, with friends who might otherwise be suitors, or
with in-laws who would otherwise be strangers) may be limited and defined in part by our
relationship with each other. Against this backdrop, it will often make less sense to ask
whether your unsolicited interest in my embodied personhood is tender rather than pred-
atory. The way we have constructed our life together presupposes our loyalty to each other
as autonomous beings,51 and can give sexual touching—even when it is one-sided or
unexpected—a significance it does not have for people involved in more transient or
exploitive relationships.52
This is not to say that the individuals involved in a long-term relationship may touch
each other however they want, whenever they want. Two people, in the course of exploring
each other’s embodied selves and becoming more intimate with each other, learn how each
responds to certain kinds of touching, and learn how each expresses his or her feelings of
attachment to the other. Over time, they become able to recognize how each expresses
tenderness and loyalty to the other. They come to share, as it were, a common language of
intimacy.53 To be sure, they may be unable to readily articulate how they are able to
recognize those feelings, just as we may be unable to explain how we know what other
expressions and gestures mean in other contexts in our lives. This is, moreover, not the
forum to develop further how and when this common language of intimacy emerges—that
is a subject worthy of its own paper. It is enough for our purposes here to note that people
do recognize signs of tenderness from their partners, that some of these signs are sexual in
nature, and that within the context of a relationship characterized by loyalty and mutual
respect there may be nothing problematically objectifying about certain kinds of sexual
touching.
Now, it must be said there is, as far as I can see, nothing in ‘‘The Wrongness of Rape’’,
or in Gardner’s work generally, to suggest that consent can be ‘‘implied’’ in the way that
(on my reading) Nussbaum appears to suppose. Indeed, their discussion of the ‘‘pure case
of rape’’—in which a woman is raped while she sleeps and never discovers or suspects that
it happened—seems to be in considerable tension with Nussbaum’s suggestion that the
sexual touching of a sleeping partner can be non-instrumentalizing. But we should take
care not to assume that their views are incompatible. In the pure case, the assailant is a
stranger, and the norms that govern their relationship are entirely different from those
which would govern those of intimate partners whose attitude towards each other in
defined by loyalty. Even if the assailant in the pure case was the woman’s long-term
partner, it did not involve mere sexual or sexualized touching, but penetration—we should,
to put it mildly, hesitate to assume that many intimate relationships have norms in which
the penetration of a sleeping partner is regarded as a legitimate mode of expressing
affection or tenderness.54 There is an enormous difference between the touching Nussbaum
describes and that which occurs in Gardner and Shute’s pure case.

50
See Joseph Raz, The Morality of Freedom (Clarendon, 1986) at ch. 12; Nussbaum, Upheavals of
Thought, supra note 26.
51
On loyalty, see Raz, ibid.; Scruton, supra note 20 at 241–242.
52
See Scruton, ibid. at 248.
53
Ibid. at 247.
54
See RA Duff, Answering for Crime (Hart, 2007) at 247–9.

123
Crim Law and Philos

Furthermore, the idea that loyalty might make a moral difference is not so far-fetched.
In other contexts where the asymmetrical intimacy between adults might otherwise be
regarded as troublingly objectifying, the fact that a duty of loyalty exists is often thought to
cure the moral problem. Consider many (perhaps all) fiduciary relationships.55 A doctor or
dentist may need to feel around tender areas of his or her patient’s body, provoking
involuntary winces and cries in the process, so that he or she may arrive at a diagnosis. A
lawyer or therapist may need to elicit from his or her client information so upsetting that it
provokes tears or a flush of indignation.
It is certainly possible for their conduct to be objectifying, and in troubling ways: a
lawyer may treat her client as nothing more than a repository of evidence, just as a doctor
may fail to take seriously (or utterly ignore) his or her patients’ subjective experience of
their ailments or injuries, focusing attention entirely upon their bodies as sources of
diagnostic information.56 But these would (at least in many circumstances) be unprofes-
sional courses of action. We would not tend to think of doctor-patient or lawyer-client
relationships as inherently immoral, in spite of both their often objectifying nature, and in
spite of the asymmetry of power built into them.57 The reason can be found in an
observation frequently made with respect to fiduciary relationships; namely, that the
fiduciary owes the beneficiary a duty of loyalty.58 Doctors and lawyers are expected to
engage in what might otherwise seem like objectifying behaviour only insofar as they are
compelled to do so out of a disinterested concern for the well-being of their patients and
clients; i.e., because a medical treatment or litigation strategy, appropriate for the needs of
the patient or client, cannot be formulated without the intrusion. The sober manner and
environment in which these examinations take place, to say nothing of the duty of con-
fidentiality,59 moreover, are expected to convey the professional’s attitude that his or her
intrusion into the viscerally personal affairs of the patient and client is neither frivolous nor
undertaken for personal amusement or gain. The duty of loyalty, in other words, removes
or mitigates the vulnerability, and sense of shamefulness, that the beneficiary would
otherwise endure.
We can also get a rough sense of the difference mutuality makes to the moral calculus,
if we consider the comparison David Sussman has drawn between seduction and torture.60
In both seduction and torture, Sussman has argued, the object experiences a loss of
autonomy and control. Whereas the loss of control by the object of seduction may be
experienced as ultimately liberating and deeply satisfying, however, that experienced by
the object of torture could not. The difference, as Sussman shows, can be attributed to the
absence of mutuality in the case of torture. There is nothing like a fiduciary relationship
between torturer and victim. Quite the contrary, the torturer’s attitude to her victim is

55
See Evan Fox-Decent, ‘‘The Fiduciary Nature of State Legal Authority’’ (2005) 31 Queen’s L.J. 259;
Evan Fox-Decent, ‘‘Is the Rule of Law Really Indifferent to Human Rights?’’ (2008) 27 Law & Phil. 533.
56
Lorianna de Giorgio, ‘‘Is bad bedside manner a conscious decision on the doctor’s part?’’ Toronto Star
(12 May 2012), online: \http://www.thestar.com/news/world/article/1176448–is-bad-bedside-manner-a-
conscious-decision-on-the-doctor-s-part[.
57
Consider the discussion by Annalise Acorn, ‘‘Responsibility, Self-Respect and the Ethics of Self-pa-
thologization’’ in Francois Tanguay-Renaud and James Stribopolous, eds., Rethinking Criminal Law Theory
(Hart 2012), in which she distinguishes between old and new approaches to psychiatry.
58
See Norberg v Wynrib, [1992] 2 S.C.R. 226; Strother v 3464920 Canada Inc., [2007] 2 S.C.R. 177.
59
See Federation of Law Societies of Canada, Model Code of Professional Conduct (2011) at r. 2.03.
60
See David Sussman, ‘‘What’s Wrong with Torture?’’ (2005) 33 Phil. & Public Affairs 1 at 26–28.

123
 Crim Law and Philos

marked by hatred, contempt or, at the very least, an attitude of profound indifference
towards her well-being.

Mutuality, Fungibility, and Prostitution

Gardner and Shute claimed that consent only sometimes transforms wrongs into morally
acceptable acts. Sometimes, they argued, it merely licenses wrongs. By way of illustrating
this claim, they suggested that the use of prostitutes by their clients involves the wrongful
objectification of the former by the latter, but that prostitutes can license this treatment by
giving consent.61 Our commitment to women’s sexual autonomy, they argue, requires us to
authorize them to decide whether and when others’ treatment of them as sexual objects
should be permitted.62 At the same time, Gardner and Shute stressed that the mere fact that
johns have been licensed to use women as sexual instruments does not make their
behaviour less morally suspect. Saying that consent cleanses the conduct of wrongfulness,
they remark, ‘‘lets clients of prostitutes … slip too easily off the moral hook.’’63
According to Gardner and Shute, prostitution involves the instrumentalization of
women. Drawing upon Nussbaum’s analysis, Gardner and Shute conclude: ‘‘[S]ex industry
workers typically are being objectified by their clients and consumers, and this is indeed an
attack on their humanity. They are used purely for sexual gratification.’’64 That does seem
to follow from her approach. According to Nussbaum, instrumentalization in her narrow
sense requires an absence of either consent or mutuality. As my example in Part III
suggests, it will often be the case that mutuality—in the sense of broad socio-economic
parity—will be lacking in street-level prostitution. (There is, of course, nothing to suggest
spontaneity or loyalty.) In subsequent work, though, Nussbaum expressly rejected the
suggestion that prostitution is inherently instrumentalizing.65 If we imagine a world in
which prostitution is regulated, in which sexual services are provided in a safe environ-
ment, she claimed, it can be no more morally problematic than any other professional
activity.66
Why is that? There is, after all, something deeply impersonal and anonymous about a
sexual relationship with a prostitute. One may intuit that prostitutes are treated as more or
less interchangeable with each other, and indeed with women generally, and that this is
therefore a clear case in which one person treats another as ‘‘fungible’’. That in itself does
not make the conduct instrumentalizing in Nussbaum’s analysis, but it does seem relevant
when considering whether there is mutuality. To see why it is relevant, though, we need to
explore one further dimension of mutuality.
In the last three sections, we saw that mutuality can affect the moral significance of
objectifying sexual conduct. We were, however, left with some lingering questions. For
even if sexual touching reflects an engagement with the other’s embodied personhood, and
even if the other is free to reciprocate, we may yet wonder if his or her individuality is
regarded as important—i.e., if his or her significance is based merely on being a person and
61
Gardner and Shute, supra note 1 at 206–209.
62
On the relationship between the legal significance of consent and the liberal respect for individual
autonomy, see Heidi Hurd, ‘‘The Moral Magic of Consent’’ (1996) 2 Legal Theory 121.
63
Gardner and Shute, supra note 1 at 206.
64
Ibid. at 207 [emphasis added].
65
See Nussbaum, supra note 44.
66
Ibid. at 281–2.

123
Crim Law and Philos

not on being the person he or she is. The concern, here, is that one is being treated as
essentially interchangeable with others, and that this at least can translate into a view of
him or her as disposable or, anyway, as being nothing more than a body to be used.
Though fungibility can easily translate into disposability, we might wonder if they are
inherently connected. Indeed, we might see an attitude of fungibility as equalizing or
democratizing—as akin to the view that we are all worthy of respect insofar as we are all
autonomous moral agents.67 Seen in this way, one can approach others as fungible yet still
have an attitude that celebrates the autonomy and personality of each of them. We might
associate this view with the ‘‘free love’’ movement, ‘‘swinger culture’’, or with writers who
celebrate the bathhouse culture in the gay community.68
There is, however, a very real question about whether fungibility is consistent with a
conception of equality that elevates human beings and celebrates their autonomy, rather
than one that ‘levels down’, reducing human beings to their body parts and the most
superficial aspects of their respective personalities. It was for this reason that, in Erica
Jong’s Fear of Flying, the narrator was at best ambivalent towards anonymous sex and the
free love culture.69 As she (and others) have observed, its thrills, though real, are fleeting,
and can leave its participants feeling empty and used.70 In this sense, it can be compared to
junk food—a simulation of the real thing but no substitute for genuine nourishment. The
point is not that men and women should not be free to have these relationships, however
self-objectifying they may be.71 The point, rather, is that these feelings about anonymous
sex have cognitive content, that they reflect beliefs about how they are treated or regarded
when they have this kind of encounter, and that they suggest that treating people as
fungible and anonymous sexual beings is difficult to disentangle from their treatment as
disposable.72 Commenting on Richard Mohr’s claim that gay bathhouse culture expresses a
‘‘democratic spirit’’, Nussbaum remarked:
[T]he suspicion remains that there may after all be some connection between the
spirit of fungibility and a focus on… superficial aspects of race and class and penis
size, which do in a sense dehumanize, and turn people into potential instruments. For
in the absence of any narrative history with the person, how can desire attend to
anything but the incidental, and how can one do more than use the body of the other
as a tool of one’s own states?73
If that is true in the context of sexual ‘transactions’ between people of the same gender, it
seems all the more true in relationships between men and women, with the skewed power
dynamics they often entail. It may well be that there is nothing inherently objectionable
with treating women (or men) as fungible; it may even, as some would claim, be positive
and rewarding. Nussbaum in fact has argued that the sort of fungibilizing we see in
prostitution is no different from that which occurs in any professional context—to a large

67
See Nussbaum, supra note 7 at 286–287.
68
Ibid. at 286–288.
69
Erica Jong, Fear of Flying (New American Library, 1973).
70
Ibid. at _.
71
See Gardner and Shute, supra note 1 at 208-9.
72
See Nussbaum, Upheavals of Thought, supra note _. See also Harry Frankfurt, The Importance of What
We Care About (Princeton, _).
73
Nussbaum, supra note 7 at 287.

123
 Crim Law and Philos

extent, doctors, lawyers, law professors are fungible vis a vis each other. Yet we do not
typically think fungibility problematic in those contexts because we do not take it to be
symptomatic of a basic lack of respect or regard.74
Nussbaum’s discussion of prostitution is controversial, and I do not want to dwell on it
here. For our purposes, I would observe only that her analysis of fungibility suggests a
further condition for mutuality; namely, that even if there is rough socio-economic parity
between the parties, we may still find mutuality lacking if one or the other (or both) are
regarded as inherently disposable—as beings fit to be consumed and discarded. It may be
that, in suggesting that prostitution involves instrumentalization, Gardner and Shute pre-
supposed that johns have this sort of attitude to the prostitutes they ‘use’.

Concluding Thoughts

Gardner and Shute’s analysis of rape is as compelling and thoughtful as any in the liter-
ature. But, though it is an intriguing starting-point, it represents only the tip of the iceberg.
If we are serious about coming to grips with sexual objectification and the circumstances
under which it is wrongful and (perhaps) worthy of criminalization, we should track
Gardner and Shute’s analysis to one of its main sources: Martha Nussbaum’s work. In
doing so, we not only get a better sense of just when sexual instrumentalization has taken
place, but what we should look for. In particular, we find ourselves wrestling with the idea
of mutuality—something which never takes place in Gardner and Shute’s paper, but which
is central to the instrumentalization inquiry. That is no criticism of Gardner and Shute.
Their focus was on the pure case of rape, in which a complete absence of mutuality is
obvious. But once we say that sexual instrumentalization can be a legitimate basis for
criminalization, we need to go further into just what that means. It is my hope that this
paper is one step towards doing that.

74
Nussbaum, supra note _ at _.

123