Both criminal and civil law intervene in intimate relations, sometimes to enforce certain rules of intimacy, sometimes to prevent certain forms of intimacy. Criminal law covers such offenses as prostitution, incest, rape, pedophilia, sexual harassment, and pornogra
phy. Civil law likewise deals with intimacy but in a rather different manner, sometimes enforcing obligations, sometimes protecting rights, sometimes barring certain transactions, and sometimes determining the standing of transactions on the basis of relations between the parties. Thus, civil law provides compensation for lost consortium, enacts divorce and child support settlements, determines whether gifts between lovers are recoverable if they break up, and decides whether bequests from friend to friend are legal. (As we will see later, a third body of legal doctrines—tax law—also applies to intimate relations when government authorities claim that sexual or other services constitute taxable commercial transactions.)
When the law intervenes in intimate relations, it establishes a partly independent realm from everyday practices; a realm involving its own legal matrix of relations, and therefore of boundaries for appropriate transactions. This legal realm and the realm of practices necessarily interact, since all participants (notably plaintiffs and defendants) are also pursuing real-life agendas. So, we find incessant problems of translation between legal and practical realms, a process that runs in both directions. Thus, a longtime companion must contend with a court’s ruling that his late lover had no right to bequeath him the house they shared. In the opposite direction, a jury puzzles over whether the law allows them to compensate a girlfriend for her domestic services to an ex-boyfriend. A good deal of legal work thus goes into (a) matching intimate relations with appropriate economic transactions, (b) distinguishing similar but morally and practically different relations from each other, (c) justifying such distinctions by invoking general doctrines. Hostile worlds is the most powerful of such doctrines.
In the forms of intimacy already discussed in this chapter—from courtship to sex work—the law intervenes repeatedly in all these different ways. Let’s begin with courtship. To what extent, and under what conditions does the law recognize courting couples as legally existing parties? What rights and obligations follow from that standing? What happens when one party defaults or terminates the relationship? When couples are involved, how does American law do its relational work?