The Scope and Limits of the Criminal Regulation of Sexuality

Abstract

In recent decades, societal perceptions about sexuality have undergone immense changes, which in turn led to substantial reform of states’ criminal regulation of sexual misconduct. Traditional Anglo-American law broadly criminalized all forms of sexual acts that occurred outside the institution of marriage. But changing sexual mores and the sexual practices individuals choose to engage in have resulted in states’ decriminalizing many consensual sexual behaviors that do not cause harm to third parties, where the initial justification for their criminalization rested solely on moral grounds. Yet, at the same time, legal scholars and feminist reformers, particularly in the aftermath of the #MeToo social movement, call on legislatures and policy makers to reform existing sexual assault laws in a way that would increase prosecutions for these crimes and provide justice to victims. This type of advocacy urges legislatures and policy makers to expand the scope of criminal provisions on sexual misconduct by adopting “gap fillers” to cover types of misconduct that existing legislative frameworks fail to encompass. Still other reformers, adhering to the goals of the social movement Black Lives Matter (BLM), highlight concerns about over-criminalization, over-enforcement, and mass incarceration that have disproportionately affected minority communities, especially black men, including among others in the area of sexual offenses. In the wake of #MeToo, and given this multifaceted political and social environment, questions surrounding states’ criminal regulation of sexuality currently stand at a pivotal moment. These times force legislatures and policy makers to reconcile the purported tension between the need to protect victims of sexual misconduct from violation of their sexual autonomy on the one hand, while also contracting states’ power to ∗Michal Buchhandler-Raphael. Email: mbuchhandler-raphael@widener.edu Criminal Justice Ethics, 2021 Vol. 40, No. 2, 164–178, https://doi.org/10.1080/0731129X.2021.1943843