Abstract

http://ssrn.com/abstract=2087656
 


 



An Expressive Rationale for the Thematic Prosecution of Sex Crimes


Margaret M. DeGuzman


Temple University - James E. Beasley School of Law

2012

Thematic Prosecution of International Sex Crimes, Morten Bergsmo, ed., Torkel Opsahl Academic EPublisher, 2012
Temple University Legal Studies Research Paper No. 2012-41

Abstract:     
This essay examines the philosophical justifications for giving priority to sex crime prosecutions at international courts. Despite the increased focus on prosecuting sex crimes in recent years, no effort has been made, either at the tribunals or in the scholarship, to develop such justifications. Those who prosecute and write about sex crimes generally assume that international courts should focus particular attention on such crimes. Commentators sometimes point to the practical and institutional benefits of thematic sex crime prosecutions. Such prosecutions can, for example, increase an institution’s capacity to address sex crimes by developing relevant investigative and prosecutorial expertise and expanding the applicable law. But a prior normative question must be addressed: why should international courts give priority to sex crimes when allocating scarce resources?

I argue that the philosophical grounding for thematic sex crime prosecutions must be found in the underlying purposes of international criminal courts. While the moral justifications of international prosecutions are widely disputed, there are four primary contenders: retribution, deterrence, restoration, and expression. In the first part of the essay, I explain why none of the first three theories precludes giving priority to sex crime prosecutions. In fact, each theory supports such prosecutions, at least under some circumstances. I then explain that the strongest justification for giving priority to sex crimes is found in the expressive rationale for international criminal law. In other words, if international criminal law aims to express global norms it should often seek to promote the norms against sex crimes even at the expense of other important norms. The need for such special emphasis lies in the history of under-enforcement of sex crimes in both national and international for a as well as in the discriminatory expression inherent in the crimes themselves.

Number of Pages in PDF File: 35

Keywords: International Criminal Law, selection, discretion, expressive

JEL Classification: K14, K33

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Date posted: June 19, 2012 ; Last revised: October 4, 2013

Suggested Citation

deGuzman, Margaret M., An Expressive Rationale for the Thematic Prosecution of Sex Crimes (2012). Thematic Prosecution of International Sex Crimes, Morten Bergsmo, ed., Torkel Opsahl Academic EPublisher, 2012 ; Temple University Legal Studies Research Paper No. 2012-41. Available at SSRN: http://ssrn.com/abstract=2087656

Contact Information

Margaret M. DeGuzman (Contact Author)
Temple University - James E. Beasley School of Law ( email )
1719 N. Broad Street
Philadelphia, PA 19122
United States
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