Severance-Inspired Post: Non-Consensual Sex at the ORTBO (☠️SPOILERS!☠️)

In the fourth episode of season 2 of the Apple + series, Severance, the main characters, or at least their Innies (so we think), visit Woe’s Hollow during an Outdoor Retreat Team Building Occurrence (ORTBO). Innies Mark S. and Hellie R. kissed towards the end of Season 1. We also learned at the end of Season 1 that Hellie R’s Outie is Helena Egan, scion of the Egan family and heir apparent to the leadership of Lumon Industries, where they all work. I know this all sounds crazy. Just watch the show. If you don’t have an Apple + subscription, befriend someone who does. We are evangelists for this show. If you can’t find a friend, just give me a call. I don’t mind watching it again.

By Philip Romano – Own work, CC BY-SA 4.0 

In Season 2, we follow the Innies as they work out the consequences of their experiences during the Overtime Contingency (OTC), which we touched upon here. Among the plot lines is the burgeoning love affair between Mark S. and Hellie R., which is made more complex because Mark is implicated in multiple thruples. His Innie’s boss who is also his Outie’s next-door neighbor is alleged to have designs on both his Innie and his Outie. Moreover, during the OTC, Innie Mark learned that Outie Mark’s wife, Jemma, is alive and confined to a severed existence as Miss Casey, a Lumon wellness counselor. So another plot line in Season 2 is that both Marks are working to liberate Miss Casey/Jemma while Mark S.’s attachment to Hellie R.is intensifying.  

Or so we think. But it turns out that Helena Egan, played by Britt Lower (left), has insinuated herself among the Innies and is impersonating Hellie R., also played by Britt Lower. Can you tell if the image to the left is Helena or Hellie? I sure can’t, and neither can Mark S.

And then comes the ORTBO, during which Mark S. and Helena Egan have sex. Mark S. thinks he is having sex with Hellie. He has not consented to sex with Helena Egan. There is a fascinating scene where Helena confronts Outie Mark in a diner. He does not know that he has had sex with her. He does not know that his Innie is in love with her Innie. They alternate between being wary of each other and flirtation. Mark is terrified of her. Here’s the scene. 

So, what Helena has done is unspeakable. It is a complicated crime, because she is emotionally stunted, and seems confused about her feelings for Mark, but it is a gross violation of Mark’s rights and his personhood. One would not expect an Egan to care for such things, but she likely is not used to doing Lumon’s wet work herself.

I bring all this up because consent is key component of contract formation. Increasingly, there is scholarly interest in comparative notions of consent across doctrinal areas. Gregory Crespi posted just last week on Daryl Levison and David Pozen’s Disconsents, recently posted on SSRN.  We also wrote three years ago about Roseanna Sommers (below right) and her important cross-doctrinal and cross-disciplinary work on Commonsense Consent. That article contains a detailed evaluation of a scenario much like the non-consensual sex depicted during the ORTBO. Professor Sommers’ work evaluates peoples’ responses to a situation in which a twin impersonates his brother and has sex his brother’s partner. Respondents find that this kind of deception negates consent more than does either lying about HIV status or marital status. Respondents are also far more likely to characterize deception as to identity (the twin case) as rape than they are to view the other forms of sex by deception as rape.

Discontents addresses consent in the sexual context on pages 28-32 of their manuscript. They cite to Jed Rubenfeld for the interesting insight that although consent achieved through deception is deemed invalid in many other contexts, deception in order to persuade a person into sex does not make the sex a crime. Susan Estrich attributed this incongruity in the law to a sympathy for the “right to seduce.” The authors suggest that we might broaden the inquiry into non-consensual sex beyond the current parameters, in which sex crimes require either physical violence or the threat of physical violence. Robin West has catalogued myriad situations in which in which women trade sex for “economic security, affection, status, physical protection, money, promises . . . , or . . . in-kind compensation.”  

Commonsense Consent begins by using the Bill Cosby case to illustrate how lay people struggle with the meaning of consent. Professor Sommers’ central goal in that piece is to establish that “one cannot craft an effective jury instruction or a transparent criminal statute without taking into consideration the commonsense understanding of consent.” We commonly understand that fraud defeats consent, but in many contexts, people think that deceived people have given consent or have waived their right to object. In Contract Schemas, Professor Sommers finds that consumers often view the law in formalist terms and think that they will be found to have consented to legal obligations when the law would in fact excuse them from those obligations.

It may be that our insistence on consent in the contractual context is out of step with common sense notions of what it means to consent. Or perhaps vice versa. Perhaps we need to educate people that deception negates consent, whether the deception relates to, e.g., marital status, being a carrier of STDs, the purposes of police investigations or searches, or the riskiness of surgical procedures. Professor Sommers’ work raises the question of whether it ought to be a goal of the law to adjust folk morality about what constitutes consent.

Our focus on this blog is on the narrower subject of contractual consent. In this realm, our co-blogger Nancy Kim remains the pioneer. Her book Consentability provides a comprehensive framework for thinking about these issues. While others assess consent across doctrinal areas, Nancy’s work also explores the limits of consent-based interactions. There are things, Nancy argues, to which we cannot legally give our consent.

Contracts law and the courts still have a lot of work to do in the area of consent. What happens when we check boxes and agree to terms and conditions unseen, unread, often unimagined, and often beyond the imagination of the typical consumer is not violent or shocking. Far from shocking, it occurs innumerable times daily. But it also isn’t consent in any meaningful sense of the term. It is the mere verisimilitude of consent. The shock comes later when you learn that you are bound by an arbitration clause or a warranty disclaimer or a limitation on damages or a choice-of-venue clause even though you don’t really understand what any of those things mean. Another Roseanna Sommers piece reports on survey results that 99% of respondents think they have never agreed to arbitration, but over 97% have opened an account with a company that subjects them to mandatory arbitration clauses.

Which brings me back to Lumon. Helena’s sex with Mark S. provides a rough analogy to what happens when we enter into form contracts, except that for Mark S. this is first-time, once-in-a-lifetime experience. We enter into intercourse with companies based on deception every day. We sign up for social media, thinking it is a way to connect with other people, when in fact it is a way to offer up our personal data to the social media companies, which will then sell it to other businesses. At the same time, we have relinquished rights with respect to, not only the transaction we think we have entered into, but also with respect to innumerable transactions with related entities that we may enter into in the future.

We are all leading severed existences. There is the conscious part of us, that makes choices every day about our interactions with others, and there is the severed part of us created through form contracting. Our severed bits live separate, constrained lives, but the nature of those constraints only affects the non-severed part of our consciousness in ways we do not recognize as emanating from severance. We get targeted ads, spam, and junk mail. Meanwhile our data is feeding corporate engines that slowly transform our non-severed lives and our non-severed selves.