Sugar dating, the act of a usually economically weaker party entering a (romantic) relationship with an economically stronger party for a material benefit, is not an uncommon phenomenon in the modern world. At Cambridge University alone, over one thousand students were sugar babies in 2019 according to the leading sugar dating website Seeking Arrangement (The Daily Mail, 24 March 2019). But is it legal? And if so, what is it? The first question can only be answered once the second question has been answered. The two will therefore be considered in turn.
1) What is Sugar Dating (Legally Speaking)?
What comes to mind at first for many is probably prostitution. Interestingly enough, the sugar dating website Seeking Arrangement excludes the use of its website for prostitution (and also escorting) expressly in its Terms of Use (Terms of Use, 30 October 2018). But what it says in the terms is not necessarily complied with by users and it should be noted that this is likely a pre-emptive legal cover of the website itself since it operates in over 130 countries and prostitution is not legal in all of them.
Furthermore, their website does not mention ‘sex’ expressly in its descriptions – instead, it speaks of relationships, accompanying and companionship, as for example:
“Where Sugar Babies enjoy a life of luxury by being pampered with fine dinners, exotic trips and allowances. In turn, Sugar Daddies or Mommas find beautiful members to accompany them at all times.” (About Us)
The euphemisms should, however, be seen for what they are: Euphemisms. Some of the relationships between a sugar daddy or mommy and a sugar baby may well be non-sexual, but it is clear that not all of them are. But our definition will have to accommodate both versions of this new type of relationship. So where does sugar dating fall in the legal framework?
The relationships formed between a sugar daddy/momma (D) and a sugar baby (B) are contractual in nature: B promises companionship and potentially sexual relations in return for material benefits promised by D. A clear contract. But what exactly does B promise and what exactly is D paying for? Is it sex? Is it having someone live with you in your house? Is it having someone sit across from you at a dinner table? Or having someone take a walk in the park with you every Sunday? Theoretically, it could be all of the above. So the nature of the contract will differ from arrangement to arrangement. Here is a non-exhaustive list of the options of the contractual nature such relationships could take on:
Prostitution: Should D provide the promised material benefits expressly in exchange for sexual relations, it would be a case of prostitution. Given that, unlike traditional prostitution arrangements, sugar dating does not always require the setting of set amount (usually in the form of an allowance), but it allows for D to simply ‘pay’ in gifts which D decides upon. There is, therefore, not necessarily a set price for a set activity D and B undertake (including any activities of a sexual nature). It is therefore open to argue that unless D and B expressly agreed on sex being part of the arrangement and a condition for B’s receiving of the promised material benefits, sex is not actually one of the services contractually provided by B. It may merely occur socially between the parties, without a contractual nature. Therefore, whether a sugar dating agreement qualifies as an agreement between a prostitute and a customer depends on the exact agreement made between the parties.
Escorting: Escorting is the mere provision of services, in the form of accompanying a customer. Escort services sometimes also include prostitution arrangements, but such arrangements are included in the previous category. For the purposes of this post, this category merely includes non-sexual arrangements, such as arrangements for a dinner date. Such arrangements may nonetheless end in the parties having sexual intercourse, but this would not be part of their contractual relationship, but merely the result of their social relationship.
Co-Habitation: As mentioned above, sugar dating arrangements can even take the form of arranged cohabitation between D and B. In that case, it is likely the parties’ contractual relationship would be in one of the above categories in addition to the co-habitation agreement category. A cohabitation agreement could, for example, be used by the economically stronger party (D) to protect their home which they now share with B. A cohabitation agreement can serve as evidence countering a common intention which may give rise to a constructive trust conferring a beneficial share in the home on B.
2) Is Sugar Dating Legal?
Now that we have placed sugar dating into different contractual scenarios, the question remains: is it legal? The short answer is yes. Prostitution itself is not illegal under the Sexual Offences Act 2003 (and neither is escorting in the limited sense discussed above or the concluding of a co-habitation agreement). But while the exchange of services and material benefits is not in itself illegal, there may be an issue regarding how the arrangement arose.
Under s. 52, Sexual Offences Act 2003 the intentional causing or inciting of prostitution is illegal:
(1) A person commits an offence if—
(a) he intentionally causes or incites another person to become a prostitute in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.
Under this provision, the sugar dating websites may get into trouble. Seeking Arrangement is careful in its Terms of Use to exclude the use of its page for prostitution (in all caps and boldened), but it remains to be seen whether the courts would see this as sufficient to show that the company had no intention to cause or incite someone to enter prostitution. After all, the services they facilitate can be very analogous to prostitution, potentially only distinguishable by payment being made in jewellery instead of cash in some cases. Given the prominent position of the prohibition (and the highlighting of the relevant text), is it likely that the intent requirement under s. 52(1)(a) would not be satisfied. An analogy can be drawn with contract law where the more onerous the clause, the more needs to be done to bring the clause to the attention of the other party (J Spurling Ltd v Bradshaw). Here, much has been done to bring this exclusion to the contracting party’s attention.
Websites similar to Seeking Arrangement which, however, do not prominently exclude the use of their website for prostitution may well fulfill the first limb of s. 52(1) since they promise the economically weaker party an improvement of their lifestyle through an arrangement facilitated through their services and such an arrangement may be analogous to prostitution. Since these pages must be aware that some of their parties enter into arrangements which are basically contracts for prostitution in every sense but the name, the intent requirement may well be satisfied. The pages, hoping the economically weaker parties sign up to increase website traffic and revenue, also stand to gain from them potentially entering into a prostitution-like agreement, thereby satisfying the s. 52(1)(b) limb.
News Articles
Website Seeking Arrangement (Sugar Dating Website)
Terms of Use: https://www.seeking.com/terms
About Us: https://www.seeking.com/about-us
Legislation
Sexual Offences Act 2003
Cases
Spurling Ltd v Bradshaw [1956] 1 WLR 461