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

Forthcoming, Criminal Law & Philosophy

Oxford Legal Studies Research Paper No. 2/2020

21 Pages Posted: 30 Jan 2020 Last revised: 7 Feb 2020

See all articles by Kate Greasley

Kate Greasley

University of Oxford, Faculty of Law

Date Written: January 15, 2020

Abstract

Some recent scholarship in the philosophy of criminal law claims 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 (alongside culpability requirements) the offence element of rape.

Suggested Citation

Greasley, Kate, Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability (January 15, 2020). Forthcoming, Criminal Law & Philosophy; Oxford Legal Studies Research Paper No. 2/2020. Available at SSRN: https://ssrn.com/abstract=3520099 or http://dx.doi.org/10.2139/ssrn.3520099

Kate Greasley (Contact Author)

University of Oxford, Faculty of Law ( email )

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