Speaker: Toby Handfield

Some interactions have the following feature: depending on the preferences of those involved, the interaction may make both parties better off (“consensual”), but it could also sometimes be good for one and bad for the other (“non-consensual”). If a social planner wishes to use a legal penalty to deter the latter category of interaction, but not to unduly discourage the former, how should they determine an optimal penalty? Traditional welfarist approaches aggregate the overall gains and losses, thus they include in their calculus the welfare of those who would prefer to initiate non-consensual interactions, which might be thought intuitively repugnant. We develop a formal model of quid pro quo sexual harassment as a salient example of the planner’s dilemma. We show that even under conditions where a social planner can, by increasing the penalty, deter only non-consensual interactions at the margin, they may prefer zero penalty, because of the welfare losses to would-be harassers. We then develop an alternative approach, which while still consequentialist, focuses on deterring non-consensual interactions as its fundamental concern, rather than using welfare aggregation. This approach has some similarity to a “consequentialism of rights” framework. We show that this approach can always justify a relatively harsher penalty than the welfarist framework, under comparable conditions.

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