Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0017
Stuart P. Green
{"title":"Prostitution","authors":"Stuart P. Green","doi":"10.1093/oso/9780197507483.003.0017","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0017","url":null,"abstract":"This chapter looks at prostitution. There is a great deal of variation in how various jurisdictions treat such conduct, ranging from criminalizing both the purchase and the sale of sex, to criminalizing only the purchase, to decriminalization and civil regulation of the whole transaction. The methodology of this chapter differs from that employed elsewhere in the book. Rather than ask whether and why prostitution is wrong and should be criminalized, it focuses on a definitional question, namely, what counts or should count as prostitution. In particular, it asks what should count as sex and as buying or selling within the context of the sex trade. It shows how the answers to these questions will ultimately depend on what purpose one thinks the law of prostitution is meant to serve in the first place.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"92 11","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141215526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0009
S. Green
{"title":"Incapacity to Consent","authors":"S. Green","doi":"10.1093/oso/9780197507483.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0009","url":null,"abstract":"This is the first of three chapters that consider paradigms of rape under which nonconsent is presumed on the basis of certain kinds of background conditions. The particular focus here is on cases in which complainants are said to lack the capacity to consent. Persons who are asleep, unconscious, or in a persistent vegetative state can be categorically and uniformly held to be incapable of consenting, without much risk of overinclusiveness. But the situation presented by persons suffering from intellectual or communicative deficits or who are intoxicated is more variegated and complex. There is a danger that if incapacity in these spheres is defined too broadly, some people who suffer from mental disabilities or who drink for the purpose of making themselves less inhibited might be denied the opportunity to have genuinely consensual sex.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123991035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0015
S. Green
{"title":"Incest","authors":"S. Green","doi":"10.1093/oso/9780197507483.003.0015","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0015","url":null,"abstract":"This is the first of three chapters to consider offenses that involve putatively consensual sex. The general question is whether it is possible to reconceptualize offenses that once were justified on a legal moralist rationale under the contemporary liberal harm and wrong principles. The particular focus is incest, both between adults and juveniles and involving only adults. The former is already criminalized as statutory rape. The fact that it involves a family member may justify aggravated penalties but under the principle of fair labeling does not justify its status as a freestanding offense. Putatively consensual incest involving adults presents more difficult issues, implicating the right of persons to choose their own (willing) sexual partners. One possible rationale for criminalizing incest is that it causes higher risks of birth defects. But this raises the “paradox of future individuals,” based on the fact that the act potentially causing harm to the child is the very one that brings the child into existence in the first place. Even if that paradox could be solved, problems would remain. In the modern liberal state, government intervention into reproductive choices is highly problematic. This is also true of intervention into familial relationships. If there is a liberal rationale for prohibiting adult incest, it is based on concerns that such relationships, though putatively consensual, will be found, upon further inspection, to be coercive or exploitative.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121342030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0010
Stuart P. Green
{"title":"Statutory Rape","authors":"Stuart P. Green","doi":"10.1093/oso/9780197507483.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0010","url":null,"abstract":"This chapter considers statutory rape, where liability is imposed solely by virtue of the fact that the complainant is underage. It questions whether presuming incapacity makes sense, at least in the case of older adolescents. One problem is that the law is internally inconsistent. First, it presumes incapacity when a juvenile has sex with an adult but not when she has sex with another juvenile (under so-called Romeo and Juliet provisions). Second, it implicitly recognizes capacity to consent when imposing aggravated penalties in cases where the intercourse was actually nonconsensual. One way to avoid this inconsistency would be to abandon the notion that (older) juveniles are per se incapable of consenting and instead view sex with such persons as analogous to other strict liability offenses intended to prevent harm to potentially vulnerable members of society. Such an approach would have the side effect of allowing a reasonable mistake-of-age defense.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"116 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133125186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0016
S. Green
{"title":"Sadomasochistic Assault","authors":"S. Green","doi":"10.1093/oso/9780197507483.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0016","url":null,"abstract":"This chapter considers sadomasochistic assault. Although no offense in the criminal law is specifically labeled as such, this kind of conduct has been prosecuted under general (nonsexual) assault and battery provisions. Consent normally is allowed as a defense to charges of assault involving other kinds of (nonsexual) consensual pain infliction, such as occurs in surgery, sports, tattooing, and religious flagellation. Sadomasochistic assault prosecutions differ in that the consent or volenti defense is generally disfavored. The chapter offers an argument for why consensual sadomasochistic sex is more wrongful than these others kinds of consensual harm causing, based on the doctrine of double effect (the idea that it is permissible to cause harm as a side effect of bringing about a good result, even though it would not be permissible to cause such harm as a means to bringing about the same good end). But even if that argument is correct, it would not necessarily justify SM’s criminalization. Also considered here is the problem of how to distinguish between SM that is truly consensual and that which is not. Given the role playing it sometimes involves, there exists a possibility that without appropriate safeguards, SM might serve as a cover for what is essentially rape and sexual assault.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128298620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0018
S. Green
{"title":"Bestiality","authors":"S. Green","doi":"10.1093/oso/9780197507483.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0018","url":null,"abstract":"The focus of this chapter is on bestiality, involving sex between humans and nonhuman animals. Some animal rights and feminist scholars have suggested that bestiality should be thought of as a form of nonconsensual sex. But to do so presupposes that animals can be harmed or wronged within the meaning of the liberal harm and wrong principles, which is far from clear. And even assuming that it does make sense to think of bestiality as involving nonconsensual sex, it needs to be asked if there is a coherent justification for criminalizing such conduct while so many other serious harms and wrongs to animals, including with respect to their sexual functions (such as breeding, neutering, spaying, and castrating) go unrestricted. Central here is the question of whether bestiality fits within the narrow sliver of animal mistreatment that is, under current law, considered sufficiently cruel to merit criminalization.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"IA-22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126563098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0013
Stuart P. Green
{"title":"Voyeurism","authors":"Stuart P. Green","doi":"10.1093/oso/9780197507483.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0013","url":null,"abstract":"This chapter considers the offense of voyeurism, where the offender infringes on the complainant’s autonomy by intruding on her sexual privacy without her consent. Rather than ask if the alleged victim expressed actual consent, it will sometimes be appropriate to ask if she gave constructive consent, based on her assuming the risk of some potential harm or wrong. Many victims of voyeurism probably never know that they have been victimized and thus do not suffer the usual sort of psychological trauma that victims of sexual misconduct often endure. Nevertheless, voyeurism clearly involves a serious wrong. In that sense, it constitutes what has been referred to in the criminal law theory literature as a harmless wrong. There is also another conceptual challenge that voyeurism presents. In order for the offense to be committed, the victim must have had a reasonable expectation of privacy. But this raises the question of exactly what expectations of privacy should be considered reasonable in a world in which new technologies and new social practices—including social media, smartphones, sexting, and revenge porn—have simultaneously lowered the threshold of what society regards as private while increasing the potential for harm to individuals.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116866132","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0020
S. Green
{"title":"Conclusion","authors":"S. Green","doi":"10.1093/oso/9780197507483.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0020","url":null,"abstract":"There is probably no area of the law that raises more difficult questions about the proper role of the liberal state than the criminal law, and no area of the criminal law that presents more contentious issues than the sexual offenses. This book does not purport to have resolved all of these issues. But I hope that the conceptual framework I have developed has made clearer where and why policy disagreements exist, and offers a possible path to their resolution....","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"441 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115266104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Criminalizing SexPub Date : 2020-04-13DOI: 10.1093/oso/9780197507483.003.0014
S. Green
{"title":"Indecent Exposure","authors":"S. Green","doi":"10.1093/oso/9780197507483.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780197507483.003.0014","url":null,"abstract":"This chapter considers the flip side of voyeurism—namely, indecent exposure, or exhibitionism. Whereas in voyeurism, the offender views his victim’s private activities without her consent, in indecent exposure, he subjects her to his own intimate activities. The interests and rights at stake in the two offenses are thus complementary. This chapter argues that criminal sanctions for indecent exposure are ultimately justified not on the basis of its harms, which are relatively minor, but rather on the basis of its tendency to cause offense. Unlike incest and sadomasochistic assault, which are usually performed in private, indecent exposure is normally committed in public and specifically intended to cause shock, distress, or disgust. On the other hand, some exhibitionists will have legitimate reasons for exposing themselves. They may be engaging in political protest, participating in an artistic endeavor, communing with nature, or exploring sensual pleasure. The chapter suggests that under liberal principles, the law of indecent exposure should be applied only to the most egregious and offensive sorts of exposure for which there is no legitimate justification.","PeriodicalId":233910,"journal":{"name":"Criminalizing Sex","volume":"146 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129230543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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