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I'm pretty sure you cannot make a bet and have the outcome one way or another be a sexual favor. But why would this be illegal?

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  • In what context? Could you provide more information about how this would actually be applied in a real situation where the law would be concerned with it taking place? The only thing that comes to mind is a bunch of kids playing spin the bottle and other games at a party, in which case I doubt anyone cares if they're betting sexual favors while messing around at a party.
    – animuson
    Aug 11, 2015 at 23:44
  • "Hey honey, if I make this three pointer... Oral sex. If I miss I'll do all household chores for a month." Cops come arrest me? One sues the other for breach?
    – jqning
    Aug 12, 2015 at 0:49
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    Which jurisdiction are you interested in?
    – Mark
    Aug 13, 2015 at 1:34
  • @Mark somewhere where prostitution is illegal, but sexual acts in general are all legal
    – TruthOf42
    Aug 14, 2015 at 14:26
  • As my elementary school English teacher would say, you certainly "can" do that, although it might not be legal to do so if you did.
    – ohwilleke
    Apr 21, 2023 at 18:19

2 Answers 2

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This would be entirely dependant on the jurisdiction.

The things that would need to be legal to make this transaction legal are:

  1. Is the sexual act legal?
  2. Is gambling legal?
  3. Ongoing consent by both parties

To make this an enforceable contract, in addition you would need:

  1. Sexual acts to be valuable consideration, basically, is prostitution legal?
  2. The fundamentals of a binding contract: intention, legality of objects etc.
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    Also, the remedy for breach of such a contract would almost certainly not be specific performance, given that that could amount to rape.
    – cpast
    Aug 12, 2015 at 1:04
  • why would prostitution have to be legal? Is betting something the legal equivalent of selling it?
    – TruthOf42
    Aug 12, 2015 at 12:35
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    @truth illegal acts may not form part of a contract's undertakings. However, whether prostitution is legal would depend on the statutory definition of prostitution in the relevant jurisdiction, and whether it being part of the contract (alongside the other terms of the proposed contract) fulfils that definition.
    – jimsug
    Aug 12, 2015 at 12:41
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    @truth It really depends on the definition of prostitution. If fulfilment of your wager would constitute an act of prostitution, the contract is void.
    – jimsug
    Aug 12, 2015 at 13:10
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    @TruthOf42 prostitution comes in because betting is the risking of something of value for another thing of value - for a sex act to have value in an economic sense it must be saleable. The selling of sex is prostitution
    – Dale M
    Aug 12, 2015 at 13:16
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In most jurisdictions in the U.S. this would be unenforceable, and possible even a crime. (Many non-U.S. jurisdiction are more legally tolerant of both gambling and of prostitution, and I'm not familiar with those jurisdictions at a sufficient level of detail to answer regarding those places.)

First, most U.S. jurisdictions have a common law rule that contracts with meretricious consideration (i.e. where sex is one of the things that someone is contributing economically to the contract) are void as contrary to public policy.

Second, this would be considered prostitution in most jurisdictions as it is defined under local laws. Prostitution is illegal in essentially every jurisdiction but a few counties in Nevada and is regulated there in a way that wouldn't allow this kind of contract in those jurisdictions. The illegality of prostitution would make the contract unenforceable, and depending upon the definition of prostitution in a particular jurisdiction would also make it a crime.

Third, most U.S. jurisdictions prohibit gambling generally, subject to only narrow exceptions, most of which are regulated, and this would not fall within any of the common exceptions to the rule prohibiting gambling. Gambling is usually a misdemeanor or low level felony depending upon the nature of one's involvement.

This said, however, between consenting adults who have or are open to having a sexual relationship with each other, who would never consider seeking to enforce their bet legally, one of the stronger defenses legally would be to argue that it isn't what it superficially seems to be.

In other words, one could argue that this was not really a true "contract" or transactional sex, and was also not bona fide gambling, that would actually be enforced or considered binding by the participants, but was instead merely a form of role playing or informal adult play that isn't a genuine gambling or transactional sex transaction, even though it mimics the form of such an arrangement. If the implicit assumptions of the parties in context was that someone losing a bet could decline to perform the sexual act without consequences despite the seeming obligation arising from losing the bet, this defense could prevail. And, as a practical matter, this kind of activity would not be likely to be characterized as criminal conduct by people with knowledge of it, reported to authorities, prosecuted, or enforced in a civil lawsuit, if it was just silliness between friends as opposed to genuine commercial prostitution in bet form or genuine gambling with hard stakes that would be taken seriously and enforced extra-legally.

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