Contracts against Public Policy: Contracts for Meretricious Sexual Services

Abstract

The law has historically held that contracts for the provision of meretricious sexual services — providing sexual services for reward — are contrary to public policy and are therefore void and unenforceable. In Ashton v Pratt (No 2) [2012] NSWSC 3 (16 January 2012), Brereton J held that this was still the position in 2012. However, this article posits that Brereton J’s holding was arguably incorrect, being premised upon: (a) a misapplication of the principles to be applied in determining whether a contract is contrary to public policy, and whether public policy requires that contract be unenforceable; and (b) an incorrect appreciation as to the present dictates of public policy in this area. Seismic changes to the legislative and social landscape in New South Wales (‘NSW’), particularly over the past 30 years, have heralded a substantial departure from the 18^th and 19^th century position as to the relative immorality of providing sexual services for reward. As such, at least in some contexts, and at least in NSW, greater social harm now arises from maintaining the historical prohibition on the enforceability of such contracts, as opposed to permitting such contracts to be curially enforced.