Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability

Criminal Law and Philosophy 15 (2):159-179 (2021)

Abstract

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.

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Kate Greasley
University College London

References found in this work

The Opposite of Rape.John Gardner - 2018 - Oxford Journal of Legal Studies 38 (1):48-70.
Sexual Offences and General Reasons Not to Have Sex.Jesse Wall - 2015 - Oxford Journal of Legal Studies 35 (4):777-798.
Justifying and Excusing Sex.Jesse Wall - 2019 - Criminal Law and Philosophy 13 (2):283-307.
Offences and Defences Again.Peter Westen - 2008 - Oxford Journal of Legal Studies 28 (3):563-584.

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Citations of this work

Rethinking the Wrong of Rape1.Karyn L. Freedman - 2021 - Philosophical Issues 31 (1):104-127.

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