Justifying and Excusing Sex

Criminal Law and Philosophy 13 (2):283-307 (2019)
  Copy   BIBTEX

Abstract

This article aligns two complementary claims: that sexual penetration should be considered a wrong and that consent requires express words and conduct that manifest a person’s willingness or acquiescence towards the specific act. If sexual penetration is a wrong, it will only be justified if there are reasons that permit the action and if these were the ones that the defendant acted on. A person’s internal attitude of willingness or acquiescence towards the specific act can provide the necessary guiding reasons to justify the wrong. However, words and conduct that manifest or express this internal attitude are also needed in order to provide the applicable explanatory reasons to justify the wrong. Alternatively, expressive consent can excuse the wrong by justifying the defendant’s mistake as to the applicable guiding reasons. Without the requirement of expressive consent, the criminal law is unable to capture the culpability of defendants whose deliberation over the use of force on another person did not include the other person’s expression of willingness to engage in a penetrative sexual act.

Other Versions

No versions found

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 101,854

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Sex Education and Rape.Michelle J. Anderson - 2010 - Michigan Journal of Gender and Law 17 (1).
Intoxication and the Act/Control/Agency Requirement.Susan Dimock - 2012 - Criminal Law and Philosophy 6 (3):341-362.
The Wrongfulness Constraint in Criminalisation.Antje Bois-Pedain - 2014 - Criminal Law and Philosophy 8 (1):149-169.
The Wrongfulness Constraint in Criminalisation.Antje du Bois-Pedain - 2014 - Criminal Law and Philosophy 8 (1):149-169.
Sexual Freedom and Impersonal Value.Peter de Marneffe - 2013 - Criminal Law and Philosophy 7 (3):495-512.

Analytics

Added to PP
2018-05-31

Downloads
56 (#389,131)

6 months
11 (#370,490)

Historical graph of downloads
How can I increase my downloads?

Citations of this work

Add more citations

References found in this work

Promising, intimate relationships, and conventionalism.Seana Shiffrin - 2008 - Philosophical Review 117 (4):481-524.
“The Moral Magic of Consent.Larry Alexander - 1996 - Legal Theory 2 (3):165-174.
The normative force of consent.Heidi Hurd: - 2017 - In Peter Schaber & Andreas Müller (eds.), The Routledge Handbook of the Ethics of Consent. New York, NY: Routledge.
Why sexual penetration requires justification.Dempsey Michelle Madden & Jonathan Herring - 2007 - Oxford Journal of Legal Studies 27 (3):467-491.
Justification under Authority.John Gardner - 2010 - Canadian Journal of Law and Jurisprudence 23 (1):71-98.

View all 6 references / Add more references