According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about legal rules. (...) The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them. (shrink)

Some recent scholarship in the philosophy of criminal law has claimed that sexual penetration ‘per se’—meaning, consensual or otherwise—is pro tanto morally wrong, or that there exist ‘general reasons’ against it. On such a view, penetrative sex is only ever at best justified wrongdoing. When paired with an influential view about the theoretical basis of the offence-defence distinction in criminal law, the apparent implication is that sexual penetration alone ought to constitute the actus reus of rape, with the question of (...) consent relegated to a defence matter. This article firstly sets out some of the difficult upshots of considering all sexual penetration to be pro tanto wrong, particularly when one attends to the full moral entailments of justified wrongdoing. Assuming, arguendo, that sexual penetration is pro tanto wrong, it is also far from clear, I suggest, that consent, of all things, amounts to a justification for penetrative sex. This creates further difficulties for the pro tanto wrong view. Finally, I argue that even if penetrative sex is a pro tanto moral wrong of some kind, it does not follow, as some scholars have suggested, that there is a case for making penetrative sex as such the offence element of rape. (shrink)