This article argues that rape myths and domestic abuse myths constitute hermeneutical injustices. Drawing on empirical research, I show that the prevalence of these myths makes victims of rape and of domestic abuse less likely to apply those terms to their experiences. Using Sally Haslanger's distinction between manifest and operative concepts, I argue that in these cases, myths mean that victims hold a problematic operative concept, or working understanding, which prevents them from identifying their experience as one of (...) rape or of domestic abuse. Since victims in this situation lack the conceptual resources needed to render their experience sufficiently intelligible, they are suffering a form of hermeneutical injustice. Attending to this distinctive case sheds new light not only on the functioning of social myths of this kind but on the nature of hermeneutical injustice itself, since the case of the victim who accepts myths is importantly different from other cases of hermeneutical injustice discussed in the literature to date. In practical terms, this analysis supports calls for juries in rape trials to be warned about rape myths at the start of the trial, and may have implications for calls for statutory Sex and Relationships Education in schools. (shrink)

The paper is an application of the principle of just deserts (that is, retribution) to the setting of statutory penalties. The conclusion is that there should be no separate penalty for rape but that rape should be punished under the ordinary battery statutes. The argument has four parts. First, there is a description of the place of rape in a typical statutory scheme. Second, there is a consideration of possible justifications for giving rape the (...) status it has in such a typical scheme. All justifications appear to fail for one reason or another. Third, rape is analyzed as battery and the analysis is justified. This analysis includes an explanation of why it would be unjust to punish rape more severely than ordinary batteries. Last, there is a catalogue of some practical advantages to treating rape as battery (for example, simplifying proof of the crime). The paper takes the principle of just deserts (in the form I have elsewhere defended it) for granted, but does add substantially to the understanding of how to apply it. (shrink)

This paper begins with the idea that there are sometimes gaps in our shared linguistic/ conceptual resources that make it difficult for us to understand our own social experiences, and to make them intelligible to others. In this paper, I focus on three cases of this sort, some of which are drawn from the literature on hermeneutical injustice. I offer a diagnosis of what the gaps in these cases consist in, and what it takes to fill them. I argue that (...) these gaps are filled in, at least initially, by labels of a particular kind. Specifically, these are labels that allow us to see the experiences in question as novel instances of phenomena with which we are already normatively familiar. Further, I also show that these labels bring with them important downsides: they introduce distortions into our understandings of these experiences. Using a pair of case studies (‘statutory rape,’ ‘sexual harassment’), I illustrate these distortions. (shrink)

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, (...) and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration. (shrink)

ABSTRACTAnxious individuals report disproportionately negative expectations concerning the future, termed the negative expectancy bias. In contrast, ageing is associated with an inflated expectancy for positive future events. A recent study [Steinman, S. A., Smyth, F. L., Bucks, R. S., MacLeod, C., & Teachman, B. A.. Anxiety-linked expectancy bias across the adult lifespan. Cognition and Emotion, 27, 345–355. doi:10.1080/02699931.2012.711743] found using an interpretation bias task, a negative expectancy bias in young adults and positive expectancy bias in older adults with high trait (...) anxiety. Extending this, the current study examined expectancy bias for positive, negative and ambiguously emotionally toned information in younger and older adults with clinical levels of depression and anxiety to community control groups, thus allowing examination of both disorder status and age on biases. Clinical participants reported a pervasive tendency to expect negative events relative to positive regardless o... (shrink)

There is limited knowledge about sleep in adolescents with elevated levels of anxiety treated within primary health care settings, potentially resulting in sleep problems not being sufficiently addressed by primary health care workers. In the current study self-reported anxiety, insomnia, sleep onset latency, sleep duration, and depressive symptoms were assessed in 313 adolescents referred to treatment for anxiety within primary health care. Results showed that 38.1% of the adolescents met criteria for insomnia, 34.8% reported short sleep duration, and 83.1% reported (...) long sleep onset latency. Total anxiety symptoms were related to all sleep variables after controlling for age and sex. Furthermore, all anxiety symptom sub-types were associated with insomnia and sleep onset latency, whereas most anxiety subtypes were associated with sleep duration. Adolescents’ depressive symptoms accounted for most of the anxiety-sleep associations, emphasizing the importance of depressive symptoms for sleep. However, anxiety was associated with insomnia and sleep onset latency also among youth with low levels of depressive symptoms. The findings suggests that primary health care workers should assess sleep duration, sleep onset latency, and insomnia in help-seeking adolescents with anxiety. (shrink)

A recent case in the Northern Territory of Australia has raised the issues of intra-racial rape and the legal recognition of traditional marriages between Indigenous people. The defendant in the Jamilmira case was charged with statutory rape of a 15-year-old girl. He argued that the girl’s status as his promised wife should lead to mitigation of his sentence. Members of the Northern Territory judiciary and others in the community were divided in their response to his claim. Ultimately (...) the case led to reform of the law in relation to the recognition of traditional marriage, a response which outraged some members of the Indigenous community. In this article I examine the various representations of culture and individuals that were utilised by ‘the law’ and how these representations informed the legal response. In the process I question the limits of my own role as a ‘white middle-class feminist’ in the context of explorations of law and culture. Is there a space to become involved in these debates without being complicit in fostering racism and prejudice and without reverting to stereotypes and cultural arrogance? (shrink)

In the Realm of Criminal Law, Antony Duff seeks to defend the view that we should criminalize conduct only if it is wrongful. Skeptics of legal moralism argue that this occurs all the time in supposedly overinclusive offenses whose definitions capture not only the kind of conduct that constitutes the target wrong, but also a wider class of conduct that is not wrongful prior to prohibition. An example is statutory rape. Duff, in response, contends that such offenses need (...) not violate the requirements of legal moralism. Having exploitative sex with juveniles is obviously wrong even prior to its legal regulation. But having non-exploitative sex with juveniles is also potentially wrong, inasmuch as it involves a violation of a prohibition that society has decided is justified for instrumental reasons. While Duff’s analysis offers an ingenious explanation for why offenses like statutory rape need not violate the bare minimum requirements of legal moralism, it simultaneously exposes separate, largely unacknowledged, problems of fair labeling and proportionality. By combining in a single offense wrongs that are primarily malum in se with ones that are primarily malum prohibitum—a process referred to as “wrongfulness conflation”—we risk treating unlike wrongs alike, imposing disproportionate punishments, and blurring offense labels. And such problems occur not just in the context of statutory rape, but also with respect to a host of other supposedly overinclusive offenses, including various forms of sexual assault. (shrink)

Nonforcible adult-child sex is thought to be morally wrong in part because it is nonconsensual. In this paper, I argue against this notion. In particular, I reject accounts of the moral wrongfulness of adult-child sex that rest on the absence of consent, concerns about adult exploitation of children, and the existence of a morally primitive duty against such sex.

In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial awareness (...) of the evidentiary requirements for the availability of defences at common law and explicitly defines “honest belief” as a belief that is neither reckless nor willfully blind. As a consequence of these common law developments, the defence of mistake of fact with respect to age is rarely available as a matter of law. Properly used, these common law analytic tools afford minors and under-age sex-workers better legal protection from sexual exploitation than has often been achieved in practice over the last 25 years with the “reasonable steps” requirement under ss. 150.1(4) and (5). -/- Socio-economic inequalities ensure that aboriginal children and youth are disproportionately affected by the non-enforcement, under-enforcement, and selective enforcement of laws enacted to protect minors against sexual assault and participation in sex work. Continued reliance by prosecutors and judges on out-moded jurisprudence in the screening, prosecution, and disposition of these cases in the criminal justice system reinforces existing patterns of inequality and disadvantage and violates basic principles of human rights. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than (...) simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws (...) are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded (...) on sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

Statutory interpretation involves the reconstruction of the meaning of a legal statement when it cannot be considered as accepted or granted. This phenomenon needs to be considered not only from the legal and linguistic perspective, but also from the argumentative one - which focuses on the strategies for defending a controversial or doubtful viewpoint. This book draws upon linguistics, legal theory, computing, and dialectics to present an argumentation-based approach to statutory interpretation. By translating and summarizing the existing legal (...) interpretative canons into eleven patterns of natural arguments - called argumentation schemes - the authors offer a system of argumentation strategies for developing, defending, assessing, and attacking an interpretation. Illustrated through major cases from both common and civil law, this methodology is summarized in diagrams and maps for application to computer sciences. These visuals help make the structures, strategies, and vulnerabilities of legal reasoning accessible to both legal professionals and laypeople. (shrink)

We consider the complex interactions between rape culture and epistemology. A central case study is the consideration of a deferential attitude about the epistemology of sexual assault testimony. According to the deferential attitude, individuals and institutions should decline to act on allegations of sexual assault unless and until they are proven in a formal setting, i.e., a criminal court. We attack this deference from several angles, including the pervasiveness of rape culture in the criminal justice system, the epistemology (...) of testimony and norms connecting knowledge and action, the harms of tacit idealizations away from important contextual factors, and a contextualist semantics for 'knows' ascriptions. (shrink)

According to the Ars Amatoria the notorious rape took place on the occasion of a primitive dramatic entertainment staged in a theatre, in which the seats and furnishings were also primitive. There is no time for a description of the arts of the performers—a tibicen and a ludius—before the Romans, impatient for action, receive their signal from Romulus. Nor is there any mention of a god in whose honour the entertainment had been provided.

Sex robots are likely to play an important role in shaping public understandings of sex and of relations between the sexes in the future. This paper contributes to the larger project of understanding how they will do so by examining the ethics of the “rape” of robots. I argue that the design of realistic female robots that could explicitly refuse consent to sex in order to facilitate rape fantasy would be unethical because sex with robots in these circumstances (...) is a representation of the rape of a woman, which may increase the rate of rape, expresses disrespect for women, and demonstrates a significant character defect. Even when the intention is not to facilitate rape, the design of robots that can explicitly refuse consent is problematic due to the likelihood that some users will experiment with raping them. Designing robots that lack the capacity to explicitly refuse consent may be morally problematic depending on which of two accounts of the representational content of sex with realistic humanoid robots is correct. (shrink)

Soon there will be sex robots. The creation of such devices raises a host of social, legal and ethical questions. In this article, I focus in on one of them. What if these sex robots are deliberately designed and used to replicate acts of rape and child sexual abuse? Should the creation and use of such robots be criminalised, even if no person is harmed by the acts performed? I offer an argument for thinking that they should be. The (...) argument consists of two premises. The first claims that it can be a proper object of the criminal law to regulate wrongful conduct with no extrinsically harmful effects on others. The second claims that the use of robots that replicate acts of rape and child sexual abuse would be wrongful, even if such usage had no extrinsically harmful effects on others. I defend both premises of this argument and consider its implications for the criminal law. I do not offer a conclusive argument for criminalisation, nor would I wish to be interpreted as doing so; instead, I offer a tentative argument and a framework for future debate. This framework may also lead one to question the proposed rationales for criminalisation. (shrink)

Rape, claims Ann J. Cahill, affects not only those women who are raped, but all women who experience their bodies as rapable and adjust their actions and self-images accordingly. Rethinking Rape counters legal and feminist definitions of rape as mere assault and decisively emphasizes the centrality of the body and sexuality in a crime which plays a crucial role in the continuing oppression of women.

Social epistemologists use the term hermeneutical injustice to refer to a form of epistemic injustice in which a structural prejudice in the economy of collective interpretive resources results in a person’s inability to understand his/her/their own social experience. This essay argues that the phenomenon of unacknowledged date rapes, that is, when a person experiences sexual assault yet does not conceptualize him/her/their self as a rape victim, should be regarded as a form of hermeneutical injustice. The fact that the concept (...) of date rape has been widely used for at least three decades indicates the intractability of hermeneutical injustices of this sort and the challenges with its overcoming. (shrink)

This is the first book-length philosophical examination of rape, which has received ample attention from feminists, legal scholars and social scientists.

According to the Ars Amatoria the notorious rape took place on the occasion of a primitive dramatic entertainment staged in a theatre, in which the seats and furnishings were also primitive. There is no time for a description of the arts of the performers—a tibicen and a ludius—before the Romans, impatient for action, receive their signal from Romulus. Nor is there any mention of a god in whose honour the entertainment had been provided.

There is an undeniable tendency to dismiss women’s sexual assault allegations out of hand. However, this tendency is not monolithic—allegations that black men have raped white women are often met with deadly seriousness. I argue that contemporary rape culture is characterized by the interplay between rape myths that minimize rape, and myths that catastrophize rape. Together, these two sets of rape myths distort the epistemic resources that people use when assessing rape allegations. These distortions (...) result in the unjust exoneration of people we cannot conceive of as monstrous, while making it too easy to believe that some marginalized people could be rapists. I also argue that rape myths enable a novel kind of epistemic injustice. This injustice concerns how our assessments of trustworthiness and our assessments of plausibility interact. I argue that rape myths can result in runaway credibility deflations that can explain both why people fail to believe most women, and also why people may unjustly believe false allegations that white women have been raped by black men. (shrink)

This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may (...) not be fully consensual but do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties. (shrink)

Legal definitions of rape traditionally required proof of both force and nonconsent. Acknowledging the difficulty of demonstrating the conjunction of force and nonconsent, many feminists argue that rape should be defined based on one element or the other. Instead of debating which of these two best defines the crime of rape, I argue that this framework is problematic, and that both force and nonconsent must be situated in a critique of social power structures. Catharine MacKinnon provides such (...) a critique, and she reframes rape as a matter of gender inequality. However, rather than rejecting the force/nonconsent dichotomy, MacKinnon focuses exclusively on force, which she thinks can be reconceived to include inequalities. Considering the #MeToo movement and feminist efforts to use Title IX to address campus rape, I argue that the concept of consent is more flexible than MacKinnon suggests and that “affirmative consent” can challenge this liberal model. In requiring active communication, affirmative consent shifts responsibility for rape, opens space for women’s sexual agency, and allows for the transformation of rape culture. Thus, I argue that rape should be defined by the use of force, the lack of affirmative consent, or the presence of both elements. (shrink)

Argument about changes in the law of rape are logically dependent upon a prior definitional account. For any legal definition of an act, one can sensibly ask if that definition is right. To know whether the law is sound, one must first understand of what it is that the definition is a definition. For many parts of the criminal law, and the law of rape is one, the definitions on which the law moves are concepts perfectly accessible outside (...) and apart from the law. I have two aims for this article. The first is to argue for a particular conception of rape as the best understanding of the constellation of acts we conceptualize as rape. The second, less direct, is to show that traditional methods of conceptual analysis can contribute to legal and social scholarship and reform. (shrink)

Stephen Schulhofer's book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, provides a carefully constructed and powerful case for rape-law reform. His effort is distinctive in three ways: (1) it takes the basic question of reform to be the moral one of determining which sexual interactions ought to be the subject of the criminal law, (2) it takes the right of sexual autonomy to serve as the basis for any successful legal reform, and (3) it makes (...) a philosophically sophisticated case for his own reform proposal. Schulhofer's efforts should be of great interest to philosophers, especially feminist legal philosophers, interested in questions that bear direct relevance to the relationships between autonomy, coercion, and consent as constrained by the requirements of due process. His careful and scrupulously fair discussion of influential reform recommendations set the stage for his own position (discussed in section VII), a critical evaluation thereof (sections VII and VIII), and sympathetic recommendations in VIII and IX. Of special value here is Schulhofer's attempt to extend his analysis of coerced consent to include certain "offers" made in contexts (e.g., the workplace) characterized by significant power differentials between persons. Section IX offers suggestions, generally friendly to Schulhofer's overall reform proposals, for identifying wrongful sexual interactions occurring in certain institutional or professional contexts. (shrink)

This chapter proposes a dialectical approach to legal interpretation, consisting of three dimensions: a formalization of the canons of interpretation in terms of argumentation schemes; a dialectical classification of interpretive schemes; and a logical and computational model for comparing the arguments pro and contra an interpretation. The traditional interpretive maxims or canons used in both common and civil law are translated into defeasible patterns of arguments, which can be evaluated through sets of corresponding critical questions. These interpretive argumentation schemes are (...) classified in general categories and a distinction is drawn between schemes supporting and rebutting an interpretation. This framework allows conceiving statutory interpretation as a dialectical procedure consisting in weighing arguments pro and contra an interpretation. This procedure is formalized and represented computationally through tools from formal argumentation systems. (shrink)

Empirical research has distinguished moral judgments that focus on an act and the actor’s intention or mental states, and those that focus on results of an action and then seek a causal actor. Studies indicate these two types of judgments may result from a “dual-process system” of moral judgment (Cushman 2008, Kneer and Machery 2019). Results-oriented judgements may be subject to the problem of resultant moral luck because different results can arise from the same action and intention. While some argue (...) luck should not bear on persons’ culpability, Victor Kumar has argued that the tendency to hold unlucky agents responsible for harm is justified by consequentialist aims of punishment (Kumar 2019). In contrast, judgments that focus on acts and intentions may be primarily retributive. Kumar claims that judgments focused on results track external, public harm because this increases the reliability of punishment and better achieves instrumental aims, including deterrent effect. In this chapter I examine rape cases using Kumar’s theory of punishment. Rape involves outcomes that are not publicly available. If judgments of punishment depend on outcomes, then we would expect such judgments to be less stable for those instances of wrongdoing that lack public outcomes such as rape, because such judgments would rely instead on often biased and unreliable inferential processes to establish the presence of mental states, which are essentially private. In this way Kumar’s theory actually predicts the way in which we see criminal justice institutions fail with regard to arrest, prosecution, and punishment related to rape; and we might expect similar failures for other crimes that lack publicly available results. In sum, a fundamental problem with institutionalized punishment centered upon results may be that some crimes sit within a moral blindspot. (shrink)

Existing studies of statutory interpretation are often of excellent quality but they have tended either to focus on legal practice to the detriment of comparative jurisprudence, or have examined legal reasoning at a level of abstraction which has made empirical study difficult. The author examines a recent development in this area and considers how it might be used to begin a project to identify any divergences in statutory interpretation among the various legal systems of the United Kingdom.

Moral responsibility theorists and legal theorists both worry about what negligence is, and how it might be a ground of blameworthiness. In this paper I argue that negligence suitably understood, can be an appropriate grounds for mens rea in rape cases. I am interested in cases where someone continues with sex in the mistaken belief that the other person consents. Such a mistaken belief is often unreasonable: a wilfully blind agent, one who deliberately ignores evidence that there is no (...) consent, is clearly not exculpated by his ignorance. However, there may be circumstances in which a man’s mistaken belief in consent is reasonable in the circumstances, then he is not culpable. Thus it is important to be clear about what we mean by a reasonable mistake. Many critics (e.g. Duff, Baron and others) have argued that it is not possible to make a reasonable mistake about consent, that any such mistake must involve culpable carelessness. Consent is so important that we should always double check. Not to do so is reckless, and in that case there is clearly culpability. In this paper I argue that it is possible to make a mistake that is reasonable, at least in one sense. Someone in the grip of sexist ideology might not understand how important consent is, and not through carelessness, but through sexist ideology that they have non-culpably and non-voluntarily absorbed. In that case it is not obvious that the man is culpable. I go on to argue that so far as the law is concerned, there is good reason to hold that even those who have ‘reasonable’ beliefs culpable. Having a reasonable belief in consent may be, but is not always exculpatory. We usually think a reasonable mistake does not count as negligence because a reasonable mistake is not failing to know something that you should have known. I argue that we should understand negligence—not knowing something you should have known—in a moralized sense, so that people who are ignorant through being ideologically blinded can be held to have the mens rea requisite for rape conviction. -/- . (shrink)

This article probes the usefulness of selected theories from Cognitive Linguistics in the context of statutory interpretation. The presumption of legal language is a well-established rule of statutory construction in Polish legal practice that comes from the internationally recognised theory by Jerzy Wróblewski. It rests on a controversial assumption that there are different levels of generality in legal language (i.e. the language of statutes) and a single term may be given different meanings depending on the level of generality (...) that is referred to. The authors use the notion of basic level categorisation from the cognitive theory of prototypes to explain this mechanism. Legal concepts, not unlike ordinary concepts, form hierarchical taxonomies. A single term may denote concepts that are situated at different levels in different conceptual taxonomies. In the absence of special circumstances, a legal term should be given the meaning that resides at a higher level of categorisation in the respective legal taxonomy. This way, the presumption of legal language is found to be justified on both linguistic and psychological grounds. (shrink)

: Because "rape" has such a powerful appraisive meaning, how one defines the term has normative significance. Those who define rape rigidly so as to exclude contemporary feminist understandings are therefore seeking to silence some moral perspectives "by definition." I argue that understanding rape as an essentially contested concept allows the concept sufficient flexibility to permit open moral discourse, while at the same time preserving a core meaning that can frame the discourse.

This paper shows how the mythology surrounding rape enters into a criterion of reasonableness which operates through the legal system to make women vulnerable to unscrupulous victimization. It explores the possibility for changes in legal procedures and presumptions that would better serve women's interests and leave them less vulnerable to sexual violence. This requires that we reformulate the criterion of consent in terms of what is reasonable from a woman's point of view.

In 2012, the politician Todd Akin caused a firestorm by suggesting, in the context of an argument about the moral permissibility of abortion, that some forms of rape were. This seemed to imply that other forms of rape must not be legitimate. In response, several commentators pointed out that rape is a and that there are. While the intention of these commentators was clear, I argue that they may have played into the very stereotype of rape (...) endorsed by Akin. Such a response, I claim, actually obscures a range of sexual harms, including some that may not rise to the level of being a crime. I also offer some thoughts on the moral psychology behind anti-abortion arguments of the kind advanced by Akin. (shrink)

Because “rape” has such a powerful appraisive meaning, how one defines the term has normative significance. Those who define rape rigidly so as to exclude contemporary feminist understandings are therefore seeking to silence some moral perspectives “by definition.” I argue that understanding rape as an essentially contested concept allows the concept sufficient flexibility to permit open moral discourse, while at the same time preserving a core meaning that can frame the discourse.

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside—revealing what rules drafters follow—but never from the outside. We offer a novel framework for empirically (...) testing interpretive canons “from the outside,” recruiting 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. -/- The empirical findings provide crucial evidence about which traditional canons “ordinary meaning” actually supports, and they carry several further implications. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Third, many of the canons reflect that ordinary people interpret rules with an intuitive anti-literalism. This anti-literalism finding challenges textualist assumptions about ordinary meaning, as well as offering a theme for researching other currently unrecognized canons. Most broadly, we hope the Essay initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction. (shrink)

In this article I revisit the debate around statutory underpinning in the context of the UK Leveson Inquiry of 2011–12 to refocus discussion on the conceptual distinctiveness of this term. Refusing...

This book offers a critical feminist perspective on the widely debated topic of transitional justice and forgiveness. Louise Du Toit examines the phenomenon of rape with a feminist philosophical discourse concerning women’s or ‘feminine’ subjectivity and selfhood. She demonstrates how the hierarchical dichotomy of male active versus female passive sexuality – which obscures the true nature of rape – is embedded in the dominant western symbolic frame. Through a Hegelian and phenomenological reading of first-person accounts by rape (...) victims, she excavates an understanding of rape that also starts to open up a way out of the denial and destruction of female sexual subjectivity. (shrink)

In this paper, I aim to shed some light on what rape myths are and what we can do about them. I start by giving a brief overview of some common rape myths. I then use two philosophical tools to offer a perspective on rape myths. First, I show that we can usefully see rape myths as an example of what Miranda Fricker has termed ‘epistemic injustice’, which is a type of wrong that concerns our role (...) as knowers. Then, I show that it is important to recognise that rape myths are instances of misogyny. This word is of course a more familiar one, but I'll be drawing on a specific philosophical account of what misogyny is, developed by Kate Manne, that I think is useful here. Finally, I briefly consider some upshots of these claims. (shrink)

In this paper it is shown how certain defeasible argumentation schemes can be used to represent the logical structure of the most common types of argument used for statutory interpretation both in civil and common law. The method is based on an argumentation structure in which the conclusion, namely, the meaning attributed to a legal source, is modeled as a claim that needs that is be supported by pro and con defeasible arguments. The defeasible nature of each scheme is (...) shown by means of critical questions, which identify the default conditions for the accepting interpretative arguments and provide a method for evaluating a given argument as weak or strong. (shrink)

One of the most significant shifts in current thinking on war and gender is the recognition that rape in wartime is not a simple by-product of war, but often a planned and targeted policy. For many feminists ‘rape as a weapon of war’ provides a way to articulate the systematic, pervasive, and orchestrated nature of wartime sexual violence that marks it as integral rather than incidental to war. This recognition of rape as a weapon of war has (...) taken on legal significance at the Rwandan and Yugoslav Tribunals where rape has been prosecuted as a crime against humanity and genocide. In this paper, I examine how the Rwanda Tribunal’s record of judgments conceives of rape enacted as an instrument of the genocide. I consider in particular how the Tribunal’s conception of ‘rape as a weapon of war’ shapes what can be known about sexual violence and gender in the Rwandan genocide and what cannot, the categories of victims legally recognised and those that are not, and the questions pursued, and those foreclosed, about the patterns of violence before and during the genocide. (shrink)

What exactly is rape? And how is it embedded in society? -/- Hilkje Charlotte Hänel offers a philosophical exploration of the often misrepresented concept of rape in everyday life, systematically mapping out and elucidating this atrocious phenomenon. Hänel proposes a theory of rape as a social practice facilitated by ubiquitous sexist ideologies. Arguing for a normative cluster model for the concept of rape, this timely intervention improves our understanding of lived experiences of sexual violence and social (...) relations within sexist ideologies. (shrink)

New York defines rape as forced penile vaginal penetration, which means only women can be rape victims. Given this definition, rape should always be considered a type of hate crime and thus eligible for sentencing enhancement because the perpetrators target victims based on their group membership. Such a narrow definition of rape is problematic because it fails to acknowledge oral and anal rape and overlooks the fact that men can also be raped. I argue that (...) regardless of the type of sexual assault that occurs, rape should be considered a hate crime when the rapist chooses the victim based on gender, gender identity, and/or sexual orientation and the rape reinforces the patriarchal and heteronormative hegemony. (shrink)