Why Sexual Penetration Requires Justification

Article (PDF Available)inOxford Journal of Legal Studies 27(3) · February 2007with 886 Reads
DOI: 10.1093/ojls/gqm013
Abstract
This article defends the claim that sexual penetration is a prima facie wrong: it requires justification. We defend this claim by reference to considerations relating the use of physical force required to achieve sexual penetration, the occurrence and risk of harm posed by sexual penetration, and the negative social meaning of sexual penetration in patriarchal societies. The step we take in this article is a preliminary part of a larger project. We are not here directly concerned with questions of criminalisation; we aim simply to map the moral landscape of sexual penetration.
Why Sexual Penetration Requires Justification
MICHELLE MADDEN DEMPSEY
JONATHAN HERRING
(2007) 27 Oxford Journal of Legal Studies 467
University of Oxford Faculty of Law Legal Studies Research Paper Series
Working Paper No 23/2008 July 2008
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Note: The full text (properly typeset) of this article is available from OUP and was
published as “Why Sexual Penetration Requires Justification” 27 (3) OJLS 467
(2007).
WHY SEXUAL PENETRATION REQUIRES JUSTIFICATION
Michelle Madden Dempsey
Jonathan Herring*
1. Introduction
This article defends the claim that a man who penetrates the vagina or anus of a
woman with his penis has committed a prima facie wrong.1 In other words, sexual
penetration requires justification. The question of whether sexual penetration is
wrongful in the sense we consider here has received little detailed attention in the
criminal and philosophical literature. It must be emphasised, however, that this
question leaves many further issues to be addressed before a proper evaluation of the
criminal law’s response to sexual penetration can be completed. As such, this article
forms a preliminary part of a larger project. Here, we are not directly concerned with
questions of criminalisation; we aim simply to map the moral landscape of sexual
penetration. If we are right that sexual penetration calls for justification, we must then
address the question of how and when it may be justified: for if an act is justified then
it should not be prohibited by the criminal law. Moreover, even if an act is morally
unjustified, it may nonetheless be an improper target for criminal sanction, since the
criminal law is not properly concerned with all morally unjustified conduct.2
2. Two Views of Sexual Penetration
The claim that sexual penetration itself calls for justification, as opposed to, say,
sexual penetration without consent, will undoubtedly strike many as counterintuitive.
Admittedly, our claim is a minority view in the literature; but it is not without its
supporters. This section provides a review of the academic literature regarding the
moral status of sexual penetration and describes the contrast between those who resist
our conclusion (the orthodox view) and those who endorse our conclusion (the
alternative view).
A. The Orthodox View
The orthodox view claims that sexual penetration in not wrongful in itself and thus
does not require justification. Accordingly, a further condition must be present before
the penetrator has a reason to justify his conduct. The orthodox view is well-captured
in Stephen Shute’s claim that ‘[w]e simply do not think that there is always a reason
against sexual intercourse’.3 Of course, in a trivial sense, there is always a reason
against engaging in sexual intercourse (and virtually every other activity for that
matter), insofar as one’s time and energy might be spent engaged in valuable activity
elsewhere.4 At any given time, the reasons we have to engage in other activities might
count as reasons against sexual intercourse; but this is a trivial point which would not
ground its prima facie wrongfulness. Therefore, we take Shute and other advocates of
the orthodox view to be making a somewhat different point: that there is no general
moral duty not to engage in sexual intercourse.
The orthodox view has an impressive list of supporters. John Gardner,
developing a point made in an article by Kenneth Campbell, defends the orthodox
view by way of contrasting sexual penetration with the occasioning of actual bodily
harm:
…[T]here is no general reason not to have sexual intercourse,
whereas there is a general reason not to occasion actual bodily
harm. Actual bodily harm is per se an unwelcome turn of
events, even when consensual; sexual intercourse is not per se
an unwelcome turn of events, but becomes one by virtue of
being non-consensual.5
In a similar vein, Victor Tadros adopts the orthodox view when he argues:
‘…there is no prima facie reason against having sexual
intercourse. When one has consensual intercourse, it is not as
though the prima facie reason against having intercourse has
been balance or outweighed by the fact that it was consensual.
There is no such prima facie reason at all.6
We take the above claims to be defending roughly the same point. When
Campbell and Gardner claim that ‘there is no general reason not to have sexual
intercourse’ and Tadros claims that there is no prima facie reason against having
intercourse which calls to be balanced or outweighed by some justifying condition,
we understand these authors to be claiming that sexual penetration per se is not even
prima facie wrongful. In other words, according to the orthodox view, sexual
penetration itself simply does not call for any justification whatsoever.
B. The Alternative View
The alternative view claims that sexual penetration does call for justification. In other
words, if a man penetrates the vagina or anus of a woman with his penis, he should do
so for good reason.7 George Fletcher advanced such a view in his 1978 treatise,
Rethinking Criminal Law.8 Indeed, Fletcher went even further than the claim we
advance, by arguing that all ‘[i]ntimate touching of the genitals…requires a good
reason’.9 (Our claim is limited to sexual penetration rather than all sexual touching.)
Sexual touching of the genitals, claimed Fletcher, fulfils the ‘minimal set of elements
necessary to incriminate the actor’.10 In reaching this conclusion, he compared a
variety of touchings ‘arranged in order of ascending incrimination’:
1. touching,
2. sexual contact,
3. forcible sexual contact
4. non-consensual, forcible sexual contact.
While it is clear that Fletcher chose to draw the line identifying what type of
conduct calls for justification at the point of sexual touching, his reasons for drawing
the line at that particular point are less clear. In comparing sexual touching to ‘mere
touching’, Fletcher noted, ‘[s]exual contact is obviously different. Intimate touching
of the genitals is hardly routine, the touching requires a good reason.’11 It is not
entirely clear to us what Fletcher means by ‘routine’, but we take him to be referring
to the frequency with which such contact occurs in the normal course of social
interaction.12 From this we may conclude that it is the relative rarity of sexual
touching of the genitals that provided the basis for Fletcher’s conclusion that such
conduct requires justification.13
We are more convinced by Fletcher’s conclusion than by his reasoning: unlike
Fletcher we do not put much stock in the frequency with which conduct occurs. This
consideration may prove relevant down the line in determining issues of
criminalisation, but we do not view the frequency or infrequency of conduct as
sufficient grounds upon which to conclude that the conduct itself requires
justification. Notably, Fletcher’s principal concern was the definition of offence
elements in the criminal law, which might explain his concern with the infrequency of
sexual touching as compared to mere touching. This point marks our second (and
more fundamental) departure from Fletcher’s work. We believe that the project of
properly defining criminal offences must begin with a moral account of the conduct at
issue: does the conduct require justification and if so, what justification will suffice?
Only after answering these questions should we turn our attention directly to the
question of criminalisation, at which point questions of the frequency of the conduct
and its justification in practice may become relevant.
In some respects, however, we do share Fletcher’s methodology insofar as we
take the relevant object of inquiry to be a physiological action type: namely sexual
penetration, rather than a more fully specified moral action type such as rape or sexual
assault. We believe that focusing on the action of sexual penetration provides a
fruitful first step in a tripartite analysis which enables us to identify which kinds of
sexual penetration call for justification; to identify from amongst those actions which
are morally unjustified; and ultimately to identify from amongst those unjustified
actions which may properly be criminalised.
Our approach, of course, is not the only plausible methodology for addressing
the questions raised by sexual offences. A popular alternative approach would begin
at the other end: by taking the relevant object of inquiry to be those kinds of sexual
penetration which most everyone agrees are properly criminalised, such as rape or
sexual assault.14 It has been suggested to us that our approach is somewhat reductivist,
insofar as it conceptualises the act of sexual penetration as a mere physiological
action type.15 And so it does. However, we believe a certain degree of reductivism in
this context is justified on two grounds.16 First, by focussing on the physiological
action type of sexual penetration, we are in a better position to consider whether some
forms of this action, which have not traditionally been recognised as prima facie
wrongful, ought to be so recognised. The alternative methodology, we believe, has a
tendency to limit one’s ability to consider whether our traditional understandings of
what counts as rape or sexual assault have been drawn too narrowly. Second, our
methodology corresponds to the law’s characterisation of sexual penetration as a
physiological action type.17 Statutes prohibiting sexual offences are not defined in
terms of their context; instead the law defines prohibited conduct in terms of
physiological action types.18 Thus, although we do not take up the issue of
criminalisation in this article, by taking the object of inquiry in terms that are
consistent with its conceptualisation under law, the method we adopt positions us well
to address such issues in the future. None of this is to say that we believe accounts
which are grounded in the alternative methodology are unjustifiable or unhelpful;
indeed we have found such offerings extremely fruitful in understanding the
wrongness of rape and its related concepts.19 Rather, our adoption of Fletcher’s
methodology merely reflects our belief that there is more than one way to skin this
cat, and that a variety of approaches may better illuminate new perspectives on these
issues.
3. Two Kinds of Wrongdoing
Before defending this paper’s central thesis, it may prove useful to draw some
distinctions regarding wrongdoing, so as to more clearly delineate our precise claim
about sexual penetration. This section explains and illustrates distinctions between
two different senses in which conduct may be deemed wrongful: prima facie
wrongfulness and all-things-considered wrongfulness.
The claim that ‘X is wrong’ is vague. It could mean that X is prima facie wrong
or that X is all-things-considered wrong.20 The determination that X is prima facie
wrong is merely preliminary; which is to say that once all things have been
considered, one may determine that X is either justified or unjustified.21 It is tempting
to elide this distinction and simply say that if the conduct is justified then it is not
wrong, but this temptation should be avoided. For if the evaluator’s preliminary
determination of prima facie wrongdoing was accurate, and the conduct is justified,
then the proper conclusion to reach is that the conduct is a justified prima facie
wrong.22
For criminal lawyers, the distinction between prima facie wrongs and all-thing-
considered wrongs may appear to track the offence-defence distinction: the difference
between committing the definitional elements of the offence and committing an
offence without any defence. In Fletcher’s terminology, the offence elements establish
the ‘minimal set of elements necessary to incriminate the actor.’23 Prima facie
wrongdoing is similar insofar as it implicates the actor’s basic responsibility, thereby
calling for a justification or excuse.24 However, this point is not meant to suggest that
mere prima facie wrongdoing is sufficient to establish the elements of a criminal
offence. Rather, our claim is that prima facie wrongdoing is sufficient only to
establish the need for moral justification or excuse.
The distinction between prima facie wrongs and all-things-considered wrongs is
helpful insofar as it clarifies the precise claim we advance in respect of sexual
penetration. Our concern in this article is to defend the claim that sexual penetration is
a prima facie wrong, not an all-things-considered wrong. In other words, we merely
claim that sexual penetration calls for justification; not that proffered justification has
been considered and found lacking.
4. Sexual Penetration: a Prima facie Wrong
Thus far, we have endorsed Fletcher’s conclusion that sexual penetration calls for
justification, but we have resisted the reasoning he offered in support of this
conclusion. In this section, we advance our own reasons for concluding that sexual
penetration is a prima facie wrong. We proceed in each section as follows. First, we
stipulate what we take to be an ecumenical account of prima facie wrongdoing. We
then compare each basic account of prima facie wrongdoing to sexual penetration and
thereby elaborate various reasons supporting our conclusion that penile penetration of
a woman’s vagina or anus calls for justification. Where relevant, we identify potential
exceptions to the generality of our thesis. It should be noted however that these
exceptions are cumulative: in order to avoid prima facie wrongdoing, a man engaging
in sexual penetration must satisfy each and every potential exception identified below.
If any exception fails to be satisfied, then his conduct calls for justification.25
A. Physiology and Force
The use of physical force on another person is a prima facie wrong. It may of course
be easy to justify many uses of physical force on another person. For example, a
mother may forcefully grab her child’s arm to prevent him from running in front of a
car, and such use of force is amply justified by reasons generated from the value of
the child’s life and well-being. But our point here is that the use of force calls for
justification: it is prima facie wrong. Moreover, even where the force is justified, its
use is none the less to be regretted. This moral residue generates reasons to prefer less
wrongful alternatives to securing the values which justify the mother’s conduct. So,
for example, if a mother can effectively prevent her child from running in front of cars
by employing less forceful means (eg, by asking an older child to step back from the
street), such means should generally be preferred to using force against the child.26
One reason why penile penetration of the vagina or anus is properly understood
to require justification is due to the physiological fact that force is required to achieve
such penetration. An important difference exists between mere touching and sexual
penetration due to the physical structure of the vagina and anus: a penis does not
simply fall into a vagina, nor is it enveloped by an anus. Rather, if a penis is to
achieve penetration, it must push through muscled walls into the vagina or anus. It
was suggested to us by one colleague that sexual penetration is analogous to putting
one’s hand into a glove, and so cannot be said to involve the use of ‘force’. We
believe the proposed analogy breaks down, however, on two grounds. First, a glove
consists of an empty cavity in the shape of a hand; whereas vaginas and anuses
contain no such cavity, penis-shaped or otherwise: they are instead sphincteric
muscles which can only be penetrated upon being pushed-apart. Second, whilst some
types of gloves, say latex gloves for example, do seem to require something akin to
the use of force, it has been suggested to us that the word force is inappropriate here.
However, whatever awkwardness may exist in characterising one’s actions as
‘forceful’ when wriggling one’s hand into a latex glove, we believe this awkwardness
evaporates once we recall that we are considering the penetration of a human body,
not a an inanimate object. If the type of physical effort used to insert one’s hand into a
latex glove were used in order to penetrate another person’s body, we believe there
would be no linguistic awkwardness in charactering this conduct as forceful.
For Andrea Dworkin, the physiological fact of the vagina’s muscled walls has
significant normative implications:
The vagina itself is muscled and the muscles have to be
pushed apart. The thrusting is persistent invasion. She is
opened up, split down the center. She is occupied – physically,
internally…27
In similar terms Ngaire Naffine sees heterosexual sexual intercourse as in its nature
about the possession of the woman by the man.28 We do not take a position as to
whether penetration into muscled bodily cavities is best understood as invasion,
possession or occupation; but simply note that penile penetration of the vagina or anus
does require physical force and for that reason calls for justification.
Where a man engages in pushing movements to achieve initial penetration or
thrusting movements during intercourse, even where he is positioned on bottom, such
actions constitutes the use of force. It is this use of physical force – the penetration of
the musculature of the vagina or anus and/or the thrusting into this musculature –
which we claim is prima facie wrongful qua an instance of the use of physical force.29
It is of course plausible to conceive of a circumstance in which sexual intercourse is
accomplished without the use of force by the male. For example, the man may be
completely immobile during the penetration and the female may engage in any and all
movements necessary to accomplish penetration. Such circumstances will admittedly
not fulfil the contingency required to render the man’s conduct prima facie wrongful
for the reasons outlined above.30 And so we arrive at an exceptional case of sexual
penetration which would not be prima facie wrongful under our first argument: A man
who penetrates the vagina or anus of a woman with his penis commits a prima facie
wrong in virtue of the use of physical force, but where the male employs no such
force (eg, he is immobile during penetration), he does not commit a prima facie wrong
grounded on the use of force.31
B. Risks of Harm
To cause someone harm requires a justification. Not only that, but posing a nontrivial
risk of significant harm to another person is a prima facie wrong.32 Of course, in many
things we do relative to other people, we risk setting-back their interests. This
observation may be thought to cut against the conclusion that risking harm gives rise
to any kind of wrongdoing, but we think it merely suggests that our conduct often
calls for justification. That such justification is called for rather more frequently than
we typically wish to believe is (in our view) no reason to deny that it is due. But can
the fact that an act creates a risk of harm make an act prima facie wrongful? We
believe that it can. It is not possible here to go into detail on the debates over whether
an act which endangers others can be properly criminalised even if the injury to the
victim does not materialise. However, we note the existence of a respectable body of
academic opinion supporting the appropriateness of rendering acts illegal based on
their endangering qualities.33 Antony Duff writes:
[T]he fact that a contemplated action might well injure others’
interests is, normally, a good reason against undertaking that
action, or for taking precautions against the prospective harm;
and it often provides conclusive reasons against the action. If
we act, without justification, in a way that we realise might
harm others, when the prospective harm provides a conclusive
reason against acting thus, we do wrong; we do wrong to
those whom we thus endanger.34
It might be argued that if an act endangers another but the feared injury does
not materialise then there is no harm. However, that would be to adopt too narrow an
understanding of harm. It is a set-back to an individual’s interests to be exposed to a
risk, even if that risk does not materialise. And that is true even if the victims are
unaware of the risk to which they are exposed. Clare Finkelstein makes the point by
way of this example:
Exposure to a risk of developing cancer, for example,
diminishes a person's welfare because he now belongs to a
class in which the relative frequency of developing cancer is
greater than the relevant class of persons to which he belonged
prior to that exposure. And a person has a legitimate interest
in being in the class of persons with a lower chance of
developing cancer, since to be in the class of persons with a
higher chance of developing cancer is to be doing
substantially less well in life.35
There is, however, some minimal level of risk and harm below which conduct
will not constitute even a prima facie wrong. In order for conduct to be properly
considered prima facie wrongful due to the risk of harm it poses, the harm risked must
be sufficiently likely to occur and/or sufficiently serious in nature. For example, we
risk bumping into other people when we walk down the street, and through bumping
into someone, we risk setting back her interests by causing her pain or simply making
her arrive late for a meeting.36 The risk posed, however, is small and the potential
harm is not significant. We might imagine that the harm at issue is much more
significant; for example, if the person we approach on the street has an egg-shell skull
and thus a serious jolt, knocking her to the ground may cause her death. Does this risk
mean that every act of walking down the street calls for justification in virtue of the
contingency that we might knock down a person with an egg-shell skull? No. We
concede that such conduct does not call for a justification. Rather, prima wrongdoing
grounded in causing a risk of harm to another person is a threshold concept – it
demands a combined degree of risk and harm that exceeds the trivial. In the first
hypothetical, the risk (bumping into someone) was small and the harm (causing slight
pain or delay) was insignificant. In our view, posing such a risk of harm does not rise
to the level of prima facie wrongdoing. In the second hypothetical, the risk (knocking
someone to the ground) was infinitesimally small, albeit the harm (death) was
extreme. In our view, posing an infinitesimally small risk of even an extreme harm
does not rise to the level of prima facie wrongdoing. From this we conclude that
walking down the street, generally, does not constitute a prima facie wrong, despite
the contingent risk of harm it poses.37 In comparison, sexual penetration often does
present a nontrivial risk of significant harm and thus does call for justification.
(i) Risk of Physical Harm
We argue that there are three risks of physical harm that attach to sexual penetration
which can render the action prima facie wrongful. First, sexual penetration carries the
risk of causing serious harm in the form of sexually transmitted diseases (STDs).38
Second, (in the case of vaginal penetration), there is the risk of unwanted pregnancy.
Both of these are, of course, serious harms.39 Indeed, even where pregnancy is desired
by the woman, it brings with it a host of physical complaints, discomforts and
complications ranging from fatigue, nausea, headaches, varicose veins, incontinence,
muscle cramping and finally at the time of delivery the overwhelming likelihood of
wounding either through laceration of the perineal (in a vaginal birth) or the abdomen
(in a caesarean birth).40 Third, and about this we are more hesitant, there are injuries
that can arise during sexual penetration which may ground its prima facie
wrongfulness, insofar as sexual penetration often involves a degree of abrasion to the
vagina or anus. Even in non-rough sex, women often experience slight tearing or
chaffing to the delicate tissues of the vagina. Moreover, there is ample evidence that
sexual penetration can cause more serious harm.41 Empirical medical research has
documented the physiological fact that vaginal laceration (far more serious than mere
abrasion) during intercourse (even consensual intercourse) is, in fact, ‘not
uncommon’.42 Moreover, particular dangers are present where intercourse takes place
while the woman suffers from a vaginal infection;43 or where the penetration is
‘rough’.44 Injuries suffered during vaginal intercourse can even lead to death.45 Given
the less pliable and accommodating nature of the musculature of the anus, trauma to
the rectal opening and anus is even more common in cases of penile-anal
penetration.46
The question we are left with is how great the risk and how grave the harm
must be to render the act prima facie wrongful. As noted above, this will, of course,
depend both on the degree of risk and degree of harm at issue. Suffice it to say that we
regard STDs, unwanted pregnancies, and serious internal injuries as serious harms,
and so we conclude that conduct which poses even a small risk of such consequences
is properly deemed prima facie wrongful in virtue of the risk of physical harm posed.
In contrast, we regard the risk of abrasion during sexual penetration as a much less
serious harm, but as the risk is quite high, it may ground the prima facie wrongfulness
of sexual penetration. However, we accept that it may be that the harm here is so
minor that even a high risk of it is insufficient to render the act wrongful.
Of course, it is plausible to conceive of an act of sexual penetration that does
not pose a risk of physical harm significant enough to constitute a prima facie wrong.
First let us consider the risk of pregnancy. Some instances of sexual penetration may
pose no risk of pregnancy. In anal sex, for example, or even in vaginal sex, if the man
and/or woman are entirely infertile (eg, he lacks testicles and she lacks ovaries and/or
a uterus), we concede that there is no risk of pregnancy. If any of these circumstances
exist relative to the sexual penetration in question, then we have identified the second
potential exception to our thesis: A fertile man who penetrates the vagina of a fertile
woman with his penis commits a prima facie wrong in virtue of placing the woman at
risk of pregnancy; but a man who penetrates the anus of a woman with his penis or a
man who penetrates the vagina of a women with his penis where either the man
and/or woman are infertile does not commit a prima facie wrong grounded on posing
a risk of pregnancy.47
Second, it is plausible to conceive of sexual penetration that does not pose a
risk of STD. The man may in fact be entirely disease-free at the time of penetration,
or the woman may share precisely the same strain of STD, thus posing no risk of
infecting her with any disease whatsoever. If so, then we have identified a third
potential exception to our thesis: A STD-carrying man who penetrates the vagina or
anus of a woman with his penis when the woman is not infected with an identical
strain of the STD commits a prima facie wrong in virtue of placing the woman at risk
of STD; but a disease-free man who penetrates the vagina or anus of a woman with
his penis, or an STD-carrying man who penetrates the vagina or anus of a women
with his penis when the woman is infected with an identical strain of the STD does
not commit a prima facie wrong grounded on posing the risk of STD.48
Finally, it is possible to conceive of sexual penetration that does not pose a risk
of physical harm in the form of abrasion, chaffing or tearing significant enough to
constitute a prima facie wrong. This scenario is perhaps easier to imagine in the case
of vaginal penetration. We can conceive of a man whose penis is so small relative to
the pliability of the woman’s vaginal muscled walls that penile-vaginal penetration
poses a relatively small risk of abrasion upon entry, and through adequate lubrication,
the risk can be reduced further so as to fall below the threshold of risk required to
constitute a prima facie wrong. Due to the different physical structure of the anus
(which makes it significantly less accommodating than the vagina) we are less
confident that this risk of abrasion and tearing can be reduced below the relevant
threshold in the case of penile-anal penetration, but we concede that it may do so.
With respect to some incidents of sexual penetration, therefore, we can identify a
fourth potential exception to our thesis: A man who penetrates the vagina or anus of a
woman with his penis commits a prima facie wrong in virtue of the risk of causing
abrasion, tearing, or more serious injury; but in the case of penetration where the
man’s penis is sufficiently small relative to the pliability of the woman’s sphincteric
musculature, and where adequate lubrication is present so as to reduce the risk of
injury below the relevant threshold, he does not commit a prima facie wrong
grounded on posing a risk of abrasion, tearing, or more serious injury.49
(ii) Risk of Psychological Harm
Engaging in conduct which poses a nontrivial risk of causing someone significant
psychological harm is prima facie wrongful.50 Sexual penetration can risk such harm
for a number of reasons. As Jean Hampton has noted,
[O]ne’s humanity is perhaps never more engaged than in the
sexual act. But it is not only present in the experience; more
important, it is ‘at stake’…’51
Given current social conditions, women are often in a position where being sexually
penetrated places their humanity ‘at stake’ and poses attendant risks of psychological
harm. This risk of harm may be explained at least in part by the social meaning of
being sexually penetrated, which we will discuss below. Alternatively, it can be
explained by reference to the frequency with which women and girls are subjected to
actual and threatened sexual abuse under current social conditions.52
The reality of sexual violation in our society functions at two levels to generate
a risk of psychological harm to women during sexual penetration. The first involves
cases where the particular woman being sexually penetrated has personally suffered
previous rape or sexual assault by penetration. In such cases, it is common to
experience lingering psychological trauma upon being sexually penetrated
subsequently, even when these subsequent experiences are consensual.53 Dr. Judith
Herman has documented one set of phenomena within this genre, whereby sexual
abuse survivors often psychologically split-off during sex and/or self-medicate with
intoxicants to numb themselves during subsequent sexual experiences, so as to
distance themselves from the emotional pain associated with being sexually
penetrated, even where these subsequent experiences are consensual.54 In a second set
of cases, the particular woman at issue has not personally suffered previous rape or
sexual assault, yet sexual penetration may none the less pose a risk of psychological
harm simply in virtue of the fact that such penetration occurs within the context of
what has been (correctly, we believe) identified as a ‘rape culture’: ‘a culture that
implicitly sanctions frequent male indifference to a woman's desires and a significant
degree of male violence in sexual encounters’.55 Sexual objectification of women is a
key element of a rape culture, and such objectification affects every woman,
irrespective of whether she has previously been subjected to sexual abuse. As
MacKinnon has observed:
All women live in sexual objectification the way fish live in
water. Given the statistical realities, all women live all the
time under the shadow of the threat of sexual abuse. The
question is, what can life as a woman mean, what can sex
mean, to targeted survivors in a rape culture?56
The answer, we suggest, is that the existence of a rape culture means that sexual
penetration, even when consented to, poses a risk of psychological harm to women.
The extent of this risk in any given incidence is difficult to quantify, but the existence
of the risk is inescapable. As Taslitz has noted, ‘no individual member of the public
can escape the negative ramifications of living in a society dominated by a rape
culture’.57
Whilst attitudes towards sex have undoubtedly changed over the years,
‘liberating’ sexuality, this change has not eliminated the rape culture. The so-called
sexual liberation of the 1960s led to remarkable changes in attitudes towards sex and
sexual practices. To some it was hoped that this would lead to sexual liberation for
women. Germaine Greer in The Female Eunuch wrote:
Sex must be rescued from the traffic between powerful and
powerless, masterful and mastered, sexual and neutral, to
become a form of communication between potent, gentle,
tender people, which cannot be accomplished by denial of
heterosexual contact.58
Unfortunately, despite the hoped-for changes in sexual practices, the rape
culture remains persistent. Increased rates of sexual activity have not led to decreased
rates of unwanted sexual activity. Studies consistently show high rates of unwanted
sexual contact.59 In a recent survey of sexually active young women in the United
States (average age 15.9 years), 40.9% had reported unwanted sex in the previous
three months.60 In 36.7% of cases the women had agreed to have sex for fear that
otherwise their partner would get angry.61 A recent survey of English teenagers found
that 45% had experienced unwanted sexual touching.62
Despite all of this, however, it is possible that the risk of psychological harm
can be eliminated so that a given instance of sexual penetration would not pose a
significant risk of psychological harm. Given the difficulty of ascertaining when this
risk might be eliminated or sufficiently diminished, however, it may be argued that an
act of sexual penetration constitutes a prima facie wrong in the nature of abstract
endangerment, even where the woman does not suffer harm in the event.63 We
concede however, that it may be possible to ascertain whether the risk of
psychological harm has been sufficiently eliminated so as to avoid any prima facie
wrongdoing grounded on this risk of harm. Thus we can identify a fifth potential
exception to our thesis: a man who penetrates the vagina or anus of a woman with his
penis commits a prima facie wrong in virtue of the risk of causing the woman
psychological harm; but in the case of sexual penetration where the risk of
psychological harm falls below the relevant threshold, he does not commit a prima
facie wrong grounded on posing a risk of psychological harm.64
C. Social Meaning
The prima facie wrongfulness of conduct can be grounded in the negative social
meaning of the conduct. For example, displaying the Confederate flag of the southern
United States and raising one’s middle finger both have social meanings in Anglo-
American societies which render them prima facie wrongful.65 Of course, one may be
justified in committing such acts; the fact that their social meaning renders them
prima facie wrongful does not imply that the acts are unjustifiable. Displaying the
Confederate flag in a museum of U.S. history, for example, may constitute justifiable
conduct if the reasons generated by the educational value of the flag outweigh the
reasons against its display; but justification does not eliminate the prima facie
wrongfulness of displaying this flag. It is tempting to say that if a prima facie wrong
is justified then it is not wrong; but again this temptation should be avoided. If the
conduct is justified, then the proper conclusion to reach is that the conduct is a
justified prima facie wrong – which leaves a moral residue of regret despite its being
justified.66 So whilst displaying the Confederate flag can be justified, it is nonetheless
to be regretted.
In this section we argue that penile sexual penetration of a woman’s vagina or
anus calls for justification in virtue of its negative social meaning relative to the value
of women. In other words, the social meaning of sexual penetration renders it prima
facie wrongful. Thus, contrary to Stephen Shute’s pronouncement discussed above,
we do think that there is always a reason against sexual intercourse, at least when it
involves a man penetrating a woman’s vagina or anus in the context of current social
meanings regarding this conduct. Notably, we also think this general reason against
sexual penetration can be outweighed – in other words, sexual penetration can be
justifiable, even under current social conditions67 – but so long as the negative social
meaning of sexual penetration remains in place, it remains prima facie wrongful.
(i) The Meaning of Social Meaning
It is a trite observation that an act can acquire part, or all, of its meaning from a wider
social context, but what precisely does it mean to claim that an act has a social
meaning? For our purpose, we mean simply that the act expresses something
normatively meaningful. This claim is grounded in a growing literature of expressive
theories of practical reason, morality, and law which ‘[a]t the most general level…tell
actors…to act in ways that express appropriate attitudes toward various substantive
values.’68 Expressivism of this sort is not a ‘radically new theory of morality and law’
but rather is grounded in the simple claim that, ceteris paribus, ‘the more
perspicaciously we can grasp the expressive structure of action, the more we can
improve our evaluative practices.’69
We fear that the close relationship between expressive theories and claims
about social meaning may give rise to some confusion. Specifically, our claim that
sexual penetration has a negative social meaning may easily be confused with the
following claims relating to expressivism which we do not endorse:
1. Men intend to express something negative about women when they sexual
penetrate them;
2. Women perceive men as expressing something negative about women when
men sexually penetrate them.
3. Women perceive themselves in a negative way when men sexually penetrate
them.
4. People in our society generally perceive men as expressing something negative
about women when men sexually penetrate them.
5. People in our society generally perceive women in a negative way when men
sexually penetrate them.
It may of course be the case that one or more of the above propositions is true
with respect to any given act of sexual penetration; but the negative social meaning of
the penetration does not depend on the truth of any of these propositions. The first
claim depends on the expressive agent having a harmful intention or purpose.70 In our
view the social meaning of conduct does not require any intention or purpose. Indeed,
to continue with the Confederate flag example, a person may intend to express a
wholly positive message by flying the flag (eg, community pride) and may not
intended to express any negative messages by so doing (eg, racism, support for
slavery); but these good intentions will not prevent the act from having a racist social
meaning. The second proposition depends on the victim ‘register[ing] the negative or
inappropriate attitude expressed’.71 Our view is that the negative social meaning of
sexual penetration does not stand or fall on the basis of whether the victim registers
this meaning.72 Again by way of analogy, the negative social meaning of displaying
the Confederate flag does not depend on whether African Americans perceive the
racist expression conveyed by the display. The third proposition depends on the
victim subjectively experiencing an element of harm due to the negative expression.73
Like most advocates of expressive harm theories, we deny that this element is
necessary for the identification of expressive harms, since it makes ‘the issue of harm
hostage to, on the one hand, the blithe insensitivity of the target, or, on the other hand,
hypersensitivity, whereby distress results from actions that do not in fact express
negative or inappropriate attitudes.’74
The fourth and fifth claims reflect what Margaret Gilbert has coined a
‘summative’ account of group belief, whereby ‘a group can be said to have a belief
only if a sufficient majority of individual members of the group have the belief.’75
Again, we do not view this condition as necessary to understanding the social
meaning of action. For example, whilst it may be the case that most people in Anglo-
American society generally perceive those who display the Confederate flag to be
expressing racism, the social meaning of conduct does not depend on the socio-
psychological facts of what beliefs people consciously hold within a group regarding
the social meaning of that conduct. In other words, people can be wrong in perceiving
the social meaning of conduct.
We must therefore return to our previous question: if the claim that sexual
penetration has negative social meaning does not depend on the truth of any of the
above propositions, then what precisely does it mean to claim that sexual penetration
has a negative social meaning? Is expressivism a license to characterise the social
meaning of any action however one wishes in order to make a point? Does it, as
Simon Blackburn has warned, lead to a ‘landscape where anything goes?’76 In a word:
no. Indeed, Blackburn’s own credibility principle provides a plausible sense in which
we can understand the claim that actions have social meanings.77 For this reason, we
endorse a version of Blackburn’s credibility principle in identifying the social
meaning actions.
Identifying the social meaning of an act requires us to determine, as a
preliminary matter, what it means for a society to hold a belief. According to the
credibility principle:
A group may be said to [be] committed to a belief …if there is
no way – no credible way – that the group could rationally
sustain their open affirmations were they not also prepared to
stand by the belief... The proof would be that there is no way
to make sense of the explicit statements of the body, unless
they were also committed to the implicit principle or premise
teased out this way.78
Where the credibility principle is satisfied, it makes sense to think in terms of
social meaning. Simply put, ‘one thing means another if it is a sure enough indication
of it.’79 Blackburn illustrates his credibility principle with the following example:
Suppose a club makes an open affirmation to bar from
membership all those living south of the river. And suppose
the only salient common factor is that those living north of the
river are white and those living south are black. Even though
the issue was never raised (never breathed, one might say),
[the] credibility [principle] could sustain the view that this
decision was racially motivated.80
We believe Blackburn’s credibility principle works well in identifying the
social meaning of sexual penetration. We concede the obvious point that conduct may
have multiple and even conflicting social meanings and we agree that sexual
penetration can have positive social meanings as well.81 Our point, explained more
fully below, is simply that one of the current social meanings of penile sexual
penetration under current social conditions can only credibly be explained as
devaluing women qua women and disrespecting women’s humanity, which we take to
be a sufficiently negative social meaning to ground its prima facie wrongfulness. Our
society could not use, depict and describe penile sexual penetration of women’s
vaginas and anuses the way it does if the social meaning of such conduct were not at
least in part a way of devaluing women qua women and disrespecting women’s
humanity. The only credible explanation for many of the uses, depictions and
descriptions of sexual penetration in our society is that the social meaning of such
conduct entails at least in part the devaluation and disrespect of women. We will
defend this application of Blackburn’s credibility principle to the interpretation of the
social meaning of sexual penetration below by exploring the ways in which our
society uses, depicts and describes sexual penetration.
(ii) The Social Meaning of Sexual Penetration
One current social meaning of penile penetration of a woman’s vagina or anus is that
such conduct constitutes a violation of the woman: it is an act through which she is
rendered less powerful, less human, whilst the male is rendered more powerful and
more human. The language we use to describe the act of sexual penetration betrays
this social meaning: fuck, bang, screw, rail, drill, smash, hit it; hump; let her have it;
poke; shaft, slay, etc.82 The grammatical structure of our language is such that these
verbs feature in sentences which take the form: ‘subject-verb-object’. Notably, it is
typically the person who plays the male role who is assigned as subject and the person
who plays the female role who is assigned as object. Thus, as Catharine MacKinnon
has observed, the language of sexual penetration follows a familiar and illuminating
grammatical pattern: ‘man fucks woman: subject-verb-object.’83
Moreover, as Robert Baker has explained, the passive constructions of verbs
indicating penile sexual penetration are also typically used to indicate that a person is
being harmed.84 The lexical meaning of words such as ‘fucked’, ‘screwed’, ‘shafted’,
etc. in sentences such as ‘Bobbie fucked Marion’ or ‘Bobbie screwed Marion’ are
equivocal as between at least two possible meanings: (1) the literal meaning that
Bobbie sexually penetrated Marion (who played the female role during penetration),
or (2) the metaphorical meaning that Marion was deceived, hurt, or taken advantage
of by Bobbie.85 Thus, Baker observes, ‘we say such things as “I’ve been screwed”
(“fucked”, “had”, “taken”, and so on) when we have been treated unfairly, been sold
shoddy merchandise, or conned out of valuables.’86 Given the meaning and gendered
construction of our language regarding sexual penetration, Baker correctly concludes
that ‘we conceive of a person who plays the female sexual role as someone who is
being harmed’.87
The devaluing and disrespecting of women through sexual penetration is a
consistent theme in our language, as well as in our literature, film, advertising,
television, pornography, and internet depictions of sexual penetration. In recent years,
this social meaning is perhaps conveyed most clearly in the way penile sexual
penetration of the vagina and/or anus are discussed through spam email. The
following excerpts from poet Karen Henniger’s work, based on a collection of subject
headings from unsolicited spam emails, illustrates our point:
Tiny pussies being split by big cocks; Little pussies massive
cocks; Horny Sluts to stick your cock in; they had cocks in
everyone one of my holes, she said; stretched tight pussies;
big dicks in small girls; Giant Cocks, tiny girls; impaling
piercing the hole; tight vagina spread by big dicks; tight little
whores, massive dicks split; tiny pussies being split; huge
dicks in tiny pussies.88
The credibility principle, when applied to interpret the meaning of the words we
use to describe sexual penetration, their gendered function in our language, and the
depictions of sexual penetration in our literature, film, advertising, television,
pornography, and internet discourse, supports the conclusion that at least one of the
social meanings of penile sexual penetration can only credibly be interpreted as a
devaluation of women qua women and a disrespecting of women’s humanity. The
meaning becomes clear: that the penetrated woman is not an equal to the penetrating
man, but is instead less of a person in virtue of having been fucked by him.
It is important to recall that our observations regarding the social meaning of
sexual penetration do not imply that men have any conscious purpose to devalue or
disrespect women through sexual penetration (although presumably some do). Rather,
our point is simply that any credible interpretation of the practices of, language
regarding, and depictions of sexual penetration in our culture betray a social meaning
of sexual penetration which devalues women qua women and disrespects women’s
humanity to an extent which renders such conduct prima facie wrong.89
It is tempting to believe that an individual can escape prima facie wrongdoing
through good intentions: that a man who engages in sexual penetration whilst
intending to value and respect his sexual partner in the act of intercourse may thereby
escape the taint of prima facie wrongdoing. This temptation is grounded in the
entirely rational desire to believe that we, as moral agents, have not engaged in prima
facie wrongdoing toward our sexual partners and/or that we have not been the object
of such prima facie wrongdoing. We are highly motivated to believe that well-
intentioned couples can transcend the negative social meaning of sexual penetration
through their mutual respect and valuing of one another’s humanity. However, we do
not believe it is possible for individuals to transcend the social meaning of their
conduct simply through their good intentions. Consider again the display of a
Confederate flag. A museum curator may justifiably display the flag with the best
intentions: to educate a new generation regarding the racist past of the American
South, with the aim of signalling his own rejection of racism and encouraging others
to reject racism. On our account, the curator is fully justified in displaying the flag in
virtue of the fact that he is acting for reasons that justify its display, yet his conduct is
none the less prima facie wrongful. To claim that his conduct is prima facie wrongful
is firstly to claim that it requires justification: that he should not display the flag
without good reasons of the sort that would outweigh the reasons against its display.
As he has these reasons, his conduct constitutes justified prima facie wrongdoing.
Secondly, as noted above, justified prima facie wrongdoing leaves a moral residue: a
reason to regret the display of the flag, despite its justification.90 Similarly, many of
those who engage in penile sexual penetration may do so with the best intentions: to
value and respect the humanity of their partner, thereby rejecting the negative social
meaning of this conduct. Such conduct may of course be fully justified.91 To claim
that sexual penetration is prima facie wrongful on the basis of its negative social
meaning is to claim both that it requires justification (that one should not engage in
such conduct without reasons of the sort that would outweigh the negative social
meaning of the conduct 92) and that even where justified, it leaves a moral residue of
regret.93
Notably, at the end of this section, we do not need to identify any further
exceptions to our thesis: a man who penetrates the vagina or anus of a woman with his
penis commits a prima facie wrong in virtue of the negative social meaning of that
conduct.94 The only way to escape this conclusion is to transform the social meaning
of sexual penetration in our culture.95 We hope that there will be a time in the future
when the social meaning of sexual penetration will have transformed to such a degree
that our interpretation of its social meaning will no longer satisfy Blackburn’s
credibility principle. Perhaps in a post-patriarchal world, where the social meaning of
sexual penetration has changed so radically, it will strain credibility to interpret the
uses, depictions and descriptions of sexual penetration as conveying the devaluation
or disrespect of women. When that day arrives, sexual penetration will no longer be a
prima facie wrong in virtue of its social meaning and the generality of our thesis will
be defeated. That day, however, has not yet arrived; thus the social meanings we
discuss above remain very much part of the current meaning of sexual penetration in
our culture and continue to ground its prima facie wrongfulness.
5. On Regret: The Moral Residue of Justified Prima facie Wrongdoing
Justified prima facie wrongdoing leaves a moral residue of regret.96 But what is the
rational force of regret? Principally, regret generates reason to prefer less wrongful
alternatives to securing the values that justify the prima facie wrongful conduct.97
This point is easily illustrated in the case of prima facie wrongdoing committed in
medical operations. Surgical cutting into a patient’s body is a prima facie wrong, but
one that may be justified in virtue of reasons generated inter alia by the value of the
patient’s life and well-being. Despite its justification, however, cutting into a patient’s
body is still to be regretted. This regret generates reasons for medical personnel to
seek less wrongful alternatives to securing the values sought by the surgery. If, for
example, the purpose of the cutting is to perform exploratory surgery in hopes of
diagnosing a source of the patient’s abdominal pain, it is rationally incumbent upon
the surgeon to seek less wrongful alternatives to diagnosing the source of the pain
before cutting into the patient’s body. Options such as x-rays, blood tests, CAT scans,
endoscopy, etc. should be considered before performing exploratory surgery; since
each of these options may provide a less wrongful alternative to securing the same
values which justify the surgery. The rational force of regret functions similarly in
other cases of justified prima facie wrongdoing. Returning to the display of a
Confederate flag in a U.S. history museum, recall that we concluded the display may
be justified but nonetheless regrettable; which is simply to say that if the same
educational value could be served through alternative means (without displaying the
flag) then there is reason for the museum curator to seek such alternatives.
When we claim that justified sexual penetration leaves a moral residue of
regret, what precisely is to be regretted? Here we are left undecided between two
options: either we are to regret the sexual penetration itself, or simply to regret the
basis upon which the sexual penetration was deemed prima facie wrongful in the first
place. If the latter is the case, then we must determine the basis of the sexual
penetration’s prima facie wrongfulness. So for example, where sexual penetration is
wrongful in virtue of the physical force used, then the moral residue of regret
generates reasons to prefer less forceful means of realising the values of sexual
penetration. Sex researcher Shere Hite has envisioned such an alternative, in which
thrusting would not be considered as necessary as it is
now…[There might be] more mutual lying together in
pleasure, penis-in-vagina, vagina-covering-penis, with female
orgasm providing much of the stimulation necessary for male
orgasm.98
Similarly, if the sexual penetration is prima facie wrongful in virtue of the risk
of physical harm (eg, the risk of STD or unwanted pregnancy), then regret may
generate reasons to seek less wrongful (less risky) alternatives, such as using
condoms. If the sexual penetration is prima facie wrongful in virtue of the risk of
abrasion or tearing to the vaginal or anal opening, then regret may generate reasons to
seek less wrongful (less risky) alternatives, such as ensuring that adequate lubrication
is present prior to and throughout penetration. If the prima wrongfulness of the sexual
penetration is grounded in the risk of psychological harm, then regret may generate
reasons to be particularly sensitive and supportive to one’s partner, so as to reduce
this risk of harm sufficiently. In all instances where the prima facie wrongfulness of
the sexual penetration is grounded in the posing of a risk, regret generates reasons to
be astute to the existence and degree of such risks. If adequate measures cannot be
taken to reduce the risk so as to ensure the justifiability of the penetration, then there
will exist strong reasons not to engage in sexual penetration at that time. So for
example, if the risk of STD transmission or unwanted pregnancy cannot be
sufficiently reduced (eg, if no condom is available), then alternatives to sexual
penetration should be strongly considered.
Finally, if sexual penetration is not prima facie wrongful for any of the
foregoing reasons, one must turn to the consideration of social meaning. If our
previous argument holds, sexual penetration is prima facie wrongful under current
social conditions in virtue of its negative social meaning. Thus, even when justified,
sexual penetration leaves a moral residue of regret. This regret generates reasons to
seek less wrongful alternatives, but what does this mean? For some, the rational force
of regret generated by sexual penetration is taken as a reason to refuse heterosexual
sexual intercourse altogether.99 For others regret seems to generate affirmative
reasons to engage in sexual penetration, albeit in ways which parody existing
meanings.100
For yet others, the rational force of regret is taken to generate reasons to create
a post-patriarchal society in which the social meaning of sexual penetration will be
transformed. We take this last position to be reflected in the work of Catharine
MacKinnon.101 In a recent interview with MacKinnon published in the Guardian
newspaper, the interviewer asks, ‘Doesn't what you have said…make any
heterosexual act problematic?’ To which MacKinnon responds, ‘It problematises
those that take place under conditions of sex inequality, yes.’ The article continues:
But they all do, don't they? Certainly, according to
MacKinnon's philosophy…Perhaps there's an innocent space,
I ask hopefully, where men and women can…get it on in a
beautiful non-patriarchal way - she interrupts: ‘Yes! People
work it out with great difficulty. But the first step is not to
deny that it's there.’102
We doubt whether individual couples can overcome the negative social
meaning of sexual penetration simply by their good intentions to ‘get it on in a
beautiful non-patriarchal way’, but we agree that this is a step in the right direction.
This means, at very least, that when people engage in sexual penetration, they have
reason to acknowledge and reject the negative social meaning discussed above. We
believe that such acknowledgement and rejection is possible, even under current
social conditions, and that people have reason to bring such acknowledgement and
rejection into reality when they engage in sexual penetration.103
6. Conclusion
As Nicola Lacey points out, it is extraordinary how little the law and criminal law
academics have to say about what is valuable about sexual activity.104 The topic is so
little discussed because of the widespread assumption that there is ‘nothing wrong’
with sexual penetration. The focus has traditionally been on what extra, special
ingredient makes otherwise fine and dandy sexual penetration into wrongful sexual
penetration. In this article we have argued that sexual penetration is itself a prima
facie wrong: conduct that calls for justification. As we have been at pains to remind
the reader throughout, our view is that sexual penetration can be justified, even under
current cultural conditions which render it generally prima facie wrongful. Notably,
we are not basing our view on any form of legal moralism or prudish attitudes
towards sexual penetration.105 Rather, our views are based on the account of prima
facie wrongfulness identified above; grounded in the use of force, actual and risked
harms, and negative social meaning of sexual penetration. The logical implications of
our thesis in this article require us to take the next step and attend to the question of
what justifies sexual penetration. This project will call for an examination of the issue
Lacey notes: what is valuable about sexual activity? What, in other words, are the
values of this conduct that might generate reasons strong enough to defeat the
reason(s) against it? We take up this question in our next article, where we examine
the many and varied values of sex and offer our thoughts regarding what justifies
sexual penetration.
*Worcester College, Oxford; Exeter College, Oxford respectively.
We are very grateful to the following, who have commented on this article:
Andrew Ashworth, Marcia Baron, Liam Dempsey, John Gardner, Jeremy Horder, Clare McGlynn, and
Victor Tadros. The usual caveats apply.
1 For simplicity, we will refer to this type of penetration as ‘sexual penetration’. In order to limit the
scope of our inquiry, we do not consider the issue of same-sex penetration, oral penetration, or
penetration with object(s) or body part (s) other than a penis. Rather, our claim is limited to penile
penetration of the female vagina or anus. We note that our use of the term sexual penetration therefore
differs from its meaning under the Sexual Offences Act 2003, s 1.
2 Contra, R. George, Making Men Moral: Civil Liberties and Public Morality (1993).
3 S. Shute ‘Second Law Commission Consultation Paper On Consent: (1) Something Old, Something
New, Something Borrowed: Three Aspects Of The Project’ [1996] Crim LR 684 at 690.
4 On the relationship between value and reason see J. Gardner and T. Macklem, ‘Reasons’ in J.
Coleman, S. Shapiro, and K. Himma (eds) The Oxford Handbook of Jurisprudence and Philosophy of
Law (2002).
5 J. Gardner ‘Fletcher on Offences and Defences’ (2004) Tulsa Law Review 817 at 820.
6 V. Tadros, Criminal Responsibility (2005) at 107.
7 In other words, his explanatory reasons should correspond to the guiding reasons that justify sexual
penetration. J. Gardner ‘Justifications and Reasons’ in A. Simester and A.T.H. Smith (eds), Harm and
Culpability (1996).
8 G. Fletcher, Rethinking Criminal Law (1978).
9 Ibid at 707.
10 Ibid.
11 Ibid.
12 It has been suggested to us that Fletcher’s use of ‘routine’ is meant to imply that the conduct at issue
is customary rather than merely frequent. However, it is not clear to us how this interpretation of
‘routine’ adds clarity to Fletcher’s point. That conduct is customary might be thought to mean that
engaging in such conduct does not require a good reason: but this interpretation reduces Fletcher’s
point to a tautology.
13 While we are attracted to Fletcher’s conclusion that sexual penetration requires justification, we do
not seek to defend his stronger claim that all sexual touching of the genitals requires justification.
14 An example of this alternative methodology is found in J. Gardner and S. Shute, ‘The Wrongness of
Rape’ in J. Horder (ed) Oxford Essays in Jurisprudence (4th edn, 2000) and V. Tadros, ‘Rape and
Wrongdoing’ (forthcoming, on file with the author).
15 We thank John Gardner for pressing us on this point, despite our refusal to budge.
16 Note further that the quotations from Gardner and Tadros, above n 5-6 may be read as
conceptualising sexual intercourse as a mere physiological action type, insofar as Gardner refers to
‘sexual intercourse…per se’ and Tadros implicitly refers to an act of sexual intercourse apart from any
consideration of whether the act is consensual.
17 See J. Herring ‘Mistaken Sex’ [2005] Crim LR 511, 513-514 for further discussion of this issue.
18 Eg Sexual Offences Act 2003 s 79(2).
19 Eg Gardner and Shute, above n 14 and Tadros, above n 14.
20 This use of prima facie roughly corresponds to that found in W.D. Ross, The Right and the Good
(1930). For further discussion, see R. Audi, The Good in the Right (2004) at 22-25. Our use of prima
facie bears resemblances to Shelly Kagan’s use of the term ‘pro tanto’, insofar as we claim that a prima
facie wrong is a genuine wrong, rather than merely appearing to be wrong at first glance. On the
distinction between prima facie and pro tanto, see S. Kagan, The Limits of Morality (1991) at 17, and
Audi above, at 206 fn 25. For simplicity, we will stick with the language of prima facie wrongdoing to
refer to genuine but defeasible wrongs.
21 Our distinction between prima facie and all-things-considered wrongs is very similar – indeed
perhaps for all intents and purposes identical – to Gardner, above n 7. The only relevant difference we
note is that Gardner characterized the distinction as one between different types of wrongs, while we
think this distinction is better understood as one between different perspectives from which we
determine a wrong: either preliminarily (i.e., without considering all of the reasons) or all-things-
considered (i.e., considering all of those reasons).
22 In section 5, we consider the ‘moral residue’ left behind by justified prima facie wrongs.
23 Fletcher, above n 8.
24 J. Gardner ‘The Mark of Responsibility’ (2003) 23 OJLS 15. We remain agnostic as to whether such
an account is owed simply in virtue of the actor’s basic (non-relational) responsibility, as Gardner has
argued; or whether an account is owed only to those with standing to call for such an account, as
Antony Duff has argued. R.A. Duff ‘Who is Responsible, For What, To Whom?’ (2005) 2 Ohio State
Criminal Law Review 441.
25 Ultimately, in section 4.C below, we conclude that the social meaning exception cannot be satisfied
under current social conditions. As such our claim survives intact as a plausible general account of the
moral status of sexual penetration.
26 See for further discussion see section 5 below.
27 A. Dworkin, Intercourse (20th anniversary edn, 2007) at 122.
28 N. Naffine ‘Possession: Erotic Love in the Law of Rape’ (1994) 57 MLR 10 at 35.
29 There is admittedly some ambiguity between what we refer to as sexual penetration and sexual
thrusting; but for the sake of simplicity, we will stick with the terminology of sexual penetration. We
thank Marcia Baron for bringing the ambiguity to our attention.
30 Indeed, where the man engages in no physical movements whatsoever, it may not even be
appropriate to characterise his conduct as sexual penetration, and in such cases the issue of whether he
commits a prima facie wrong in virtue of having engaged in sexual penetration evaporates.
31 He may, of course, commit a prima facie wrong in virtue of engaging in sexual penetration insofar as
the prima facie wrongfulness of his action is grounded on some other reason(s), as considered below.
32Following Feinberg, we define harm as a set-back to one’s interests; although, pace Feinberg, we
include the experience of pain as a set-back to interests. Joel Feinberg, Harm to Others (1986).
33 The arguments are discussed in R. A. Duff ‘Criminalizing Endangerment’ in R. A. Duff and S. Green
(eds), Defining Crimes (2005); C. Finkelstein ‘Is Risk a Harm?’ (2003) 151 University of Pennsylvania
Law Review 963; A. Von Hirsch, ‘Extending the Harm Principle: “Remote” Harms and Fair
Imputation’ in A. Simester and A. Smith (eds), Harm and Culpability (1996); C. Schroeder,
‘Corrective Justice and Liability for Increasing Risks’ (1990) 37 UCLA Law Review 439, at 442; K.
Simons, ‘Corrective Justice and Liability for Risk-Creation: A Comment’ (1990) 38 UCLA Law
Review 113; C. Schroeder ‘Corrective Justice, Liability for Risks, and Tort Law’ (1990) 38 UCLA Law.
Review 143 at 160; J. Coleman Risks and Wrongs (1992) at 361-85; D. Husak ‘The Nature and
Justifiability of Non-Consummate Offenses’ [1995] Arizona Law Review 151.
34 Duff, above n 33 at 53.
35 Finkelstein, above n 33 at 973.
36 If due to our bump, for example, she drops what she is carrying and must stop to collect her things
before proceeding.
37 If, however, one is particularly clumsy and susceptible to slamming into others whilst walking down
the street; then perhaps walking down a pavement surrounded by people who possess egg-shell skulls
would indeed call for justification in virtue of the greater risk of harm presented.
38 For example, it has been estimated that world-wide 39.5 million people are HIV-positive: UNAIDS,
AIDS Epidemic Update (UNAIDS, 2006) at 1.
39 See R v Dica [2004] EWCA Crim 1103, where the Court of Appeal accepted that becoming HIV
positive was to suffer grievous bodily harm.
40 Such experiences easily satisfy the test for ‘actual bodily harm’, that the harm must be more than
transient and trifling: DPP v Smith [2006] EWHC 94 (Admin).
41 C. Cisse, P. Dionne, A. Cathy, V. Mendes, F. Diadhiou, P. Ndiaye ‘Vaginal Injuries During Coitus
(1998) 43 Dakar Medicine 135.
42 R Hoffman and S Ganti ‘Vaginal Laceration and Perforation Resulting from First Coitus’ (2001) 17
Pediatric Emergency Care 113; E Ahmed, S Syed and N Parveen, ‘ Female Consensual Coital Injuries’
(2006) 16 Journal of College Physicians 333.
43 Ibid.
44 M Anate ‘Vaginal Trauma at Sexual Intercourse in Ilorin, Nigeria. An Analysis of 36 Cases’ (1989)
8 West African Journal of Medicine 217.
45 A. Abasiattai, S. Etuk, E. Bassey, E. Asuquo ‘Vaginal Injuries During Coitus in Calabar: a 10 Year
Review’ (2005) 12 Niger Postgraduate Medical Journal 140.
46 J. Auerbach, C Wypijewska and K. Brodie, Aids and Behaviour, An Integrated Approach (1994) at
48.
47 He may, of course, commit a prima facie wrong grounded on some other reason(s), such as the use of
force, risk of STD, risk of abrasion or tearing, or further reasons discussed below.
48 He may, of course, commit a prima facie wrong grounded on some other reasons(s), such as the use
of force, risk of pregnancy, risk of abrasion or tearing, or further reasons discussed below.
49 He may, of course, commit a prima facie wrong grounded on some other reason(s), such as the use of
force, risk of STD or pregnancy, or further reasons discussed below.
50 It was suggested to us by Victor Tadros that this point can be challenged by the following example:
‘A tells B that she is no longer in love with him. He is devastated by it and falls into depression.’ For
Tadros, although A has psychologically harmed B, she has done nothing that calls for justification. We
disagree. Instead, we consider A’s conduct to be prima facie wrongful but, in all likelihood, justified by
reasons grounded in (amongst other things) the intrinsic value of A telling B the truth about her
feelings, the consequential value of moving on after a failed relationship, etc.
51 J. Hampton, ‘Defining Wrong and Defining Rape’ in K. Burgess-Jackson (ed.), A Most Detestable
Crime: New Philosophical Essays on Rape (1999) 118 at 147.
52 P. Pinheiro, World Report on Violence Against Children (2006); S. Walby and J. Allan, Domestic
Violence, Sexual Assault and Stalking (2004).
53 See e.g. the evidence cited in S. Pillsbury ‘Crimes against the Heart: Recognising the Wrongs of
Forced Sex’ (2002) 35 Loyola of Los Angeles Law Review 845.
54 J. Herman, Trauma And Recovery (2nd ed., 1997). See also, C. A. MacKinnon, Toward a Feminist
Theory of the State (1989) at 147-148.
55 A. Taslitz, ‘Willfully Blinded: On Date Rape and Self-Deception’ (2005) 28 Harvard Journal of Law
& Gender 381 at 385; citing E. Buchwald, P. Fletcher, M. Roth (eds), Transforming a Rape Culture
(2nd edn 1994). See also, C. Card, ‘Rape as a Terrorist Institution’ in R. Frey and C. Morris (eds)
Violence, Terrorism and Justice (1991); D. Herman, ‘The Rape Culture’ in J. Freeman, Women: A
Feminist Perspective (4th edn 1989).
56 MacKinnon, above n 54 at 149.
57 Taslitz, above n 55 at fn 18, citing Buchwald, above n 55.
58 G. Greer, The Female Eunuch (1970), at 8. For a more modern work seeking to acknowledge that
women are actively and enthusiastically seeking sex, see K. Albury, Yes Means Yes: Getting Explicit
about Heterosex (2003).
59 In B. Fisher, F. Cullen and M. Turner, The Sexual Victimisation of Women (2000) which found that
10.1% of young American women had suffer rape; a further 10.9% attempted rape and a further 35.5%
non-consensual sexual touching.
60 B. Blythe D. Fortenberry, M. M’Hamed Temkit, T. Wanzhu and O. Donald ‘Incidence and
Correlates of Unwanted Sex in Relationships of Middle and Late Adolescent Women’ (2006) 160
Archives of Pediatric Adolescent Medicine 591.
61 Ibid.
62 NSPCC, Teenage Girls Reveal Unwanted Sexual Experiences (2006).
63 On abstract endangerment, see A. von Hirsch, above n 33 . For application of abstract endangerment
theory to the case of prostitute-use, see M. Madden Dempsey ‘Rethinking Wolfenden Prostitute-Use,
Criminal Law and Remote Harm’ [2005] Crim LR 444.
64 He may, of course, commit a prima facie wrong grounded on some other reason(s), such as the use of
force, risk of STD or pregnancy, risk of physical harm, or further reasons discussed below.
65 We borrow the Confederate flag example from S. Blackburn ‘Group Minds and Expressive Harms’
(2001) 60 Maryland Law Review 467, discussed in detail below.
66 See section 5 below.
67 See M. Madden Dempsey and J. Herring, ‘What Justifies Sex?’ (forthcoming, on file with the
authors).
68 E. Anderson and R. Pildes ‘Expressive Theories of Law: A General Restatement’ (2000) 148
University of Pennsylvania Law Review 1503 at 1504; cf H. Hurd, ‘Expressing Doubts About
Expressivism’ [2005] University of Chicago Legal Forum 405 at 405, in which Hurd claims that
expressivism in criminal law theory commits one to the joint propositions that ‘punishment [is] a
promising means of contradicting “social meanings” of crimes’ and that ‘the communicative function
[is] the highest and best goal of the justice system’. We endorse neither of these propositions here.
69 Anderson and Pildes, above n 68 at 1504.
70 Blackburn, above n 65 at 469.
71 Blackburn, above n 65 at 470.
72 Although, of course, it does not fail to register with many women that they are, both in sexual
penetration and in society more generally, being fucked.
73 On our view, if such harm is subjectively experienced by the victim, this would constitute
psychological harm which may be sufficient in itself to ground the prima facie wrongfulness of sexual
penetration. See section 4.B (i) above.
74 Blackburn, above n 65 at 470.
75 Margaret Gilbert’s On Social Facts (1989), discussed at Blackburn, above n 65 at 472-473.
76 Blackburn, above n 65 at 479.
77 See Hurd, above n 68 at 425, conceding that Blackburn’s credibility principle ‘holds out the promise
of giving the concept [of social meaning] sufficient content that it avoids what Blackburn rightfully
fears for it, namely, that “anything goes” for expressivists who assign social meanings to various
actions.’
78 Blackburn, above n 65 at 483.
79 Blackburn, above n 65 at 484.
80 Blackburn, above n 65 at 484-485. We take Blackburn to mean ‘the credibility principle could
sustain the view that this decision has a racist social meaning’, which is a claim we endorse. The
phrasing of this point is unfortunate insofar as it suggests a requirement that the expressive agent have
a harmful intention or purpose (‘motive’); a requirement which Blackburn has explicitly disclaimed.
Blackburn, above n 65.
81 We consider such meanings, along with the other values of sexual penetration, in Dempsey and
Herring, above n 67.
82 Wikisaurus, ‘sexual intercourse’, http://en.wiktionary.org/wiki/Wikisaurus:sexual_intercourse
#Synonyms_.28non-slang.2C_non-euphemism.29 (last visited 12 February 2007). See also R. Baker,
‘Pricks and Chicks: a Plea for Persons’ in R. Baker and F. Elliston (eds.) Philosophy and Sex (1984), at
263. Our thanks to Marcia Baron for directing us to this latter source.
83 MacKinnon, above n 54 at 128.
84 Baker, above n 82 at 263.
85 Ibid.
86 Ibid.
87 Ibid. See also, G. Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal about the
Mind (1987), discussing the link between sex and violence at 409-415. We thank Catharine
MacKinnon for directing our attention to this source.
88 K. Henniger, ‘The Hole in Our society’s sense of Decency and Sexuality as legally printed and
manufactured’ (2005). (On files with authors).
89 It is consistent with our understanding of prima facie wrongdoing that one may be subjected to such
wrongdoing without realising it. Consider Finkelstein’s example of those who are exposed to a higher
risk of developing cancer, above 000: on our account, these people are wronged irrespective of whether
they realise what has happened to them or whether they conceive themselves as having been wronged.
90 We will return to reasons to regret below in section 5.
91 We will turn to this question in Dempsey and Herring, above n 67.
92 Reasons against sexual penetration may also derive from the earlier considerations discussed above
regarding the physiology of penetration and the risk of physical or psychological harm.
93 See section 5 below.
94 The prima facie wrongfulness of sexual penetration may also be grounded in any of the reasons
discussed above (eg, force, harm, risk, etc.).
95 By ‘our culture’ we refer to the U.S. and U.K. However, we do not base any exceptions on culturally
relative social meanings, since the social meaning of sexual penetration at present seems problematic
across all cultures in roughly similar ways to those discussed above.
96 This claim reflects our understanding that the prima facie wrongfulness of sexual penetration is
grounded in reasons which may be overridden but not cancelled. On the distinction between cancelling
and overriding reasons, see J. Raz, Practical Reason and Norms (1975) at 27, 180 fn 6. We revisit this
issue in Dempsey and Herring, above n 67.
97 Depending on circumstances, regret may also generate reason to apologise, make amends, etc. for
justified prima facie wrongdoing, but it need not do so. There is a dynamic aspect of regret just as
there is a dynamic aspect of rights: a change of circumstance may generate new reasons for action
based on an old regret; just as a ‘change of circumstance may lead to the creation of new duties based
on [an] old right.’ J. Raz, 'On the Nature of Rights' 39 Mind 194, 200 (1984). So the question of
whether a justified prima facie wrongdoer has reason to apologise, make amends, etc. depends on
something more than whether his conduct leaves a moral residue of regret. We thank Victor Tadros,
Marcia Baron, and an anonymous reviewer for pressing us to clarify this point further.
98 S. Hite, Hite Report (1976) at 141, cited in Dworkin, above n 27 at 162-163. Hite’s point implies that
the values of sexual penetration can be realised without the use of force, but we take no position on that
issue here.
99 For a general discussion of political lesbian-feminist separatism, see K Rudy, ‘Radical Feminism,
Lesbian Separatism, and Queer Theory’ (2001) 27 Feminist Studies 190.
100 J. Butler, Gender Trouble: Feminism and the Subversion of Identity (1990). Butler would not
characterise the issue in terms of the moral residue of regret, nor does she think that such parodic
performances can change social meaning. For Butler, it seems the best we can hope to do is mock such
meanings, not change them. For a stinging and insightful critique of Butler, see M. Nussbaum, ‘The
Professor of Parody’ The New Republic (22 February 1999).
101 Despite attributions to the contrary, MacKinnon has never claimed that all sex is rape. Rather, we
take her work to be consistent with our account of sexual penetration as prima facie wrongful. ‘Are
Women Human?’ The Guardian (12 April 2006).
102 Ibid.
103 Importantly, however, whilst such acknowledgement and rejection of the negative social meaning of
sexual penetration does not eliminate the prima facie wrongfulness of this conduct; it may provide a
key to the normal justification of such conduct. See Dempsey and Herring, above n 67.
104 N. Lacey, Unspeakable Subjects (1998) at 118-121.
105 See eg H. Gross, ‘Rape, Moralism and Human Rights’ [2007] Crim L R 193, and J Herring ‘Human
Rights and Rape: A Reply to Gross’ [2007] Crim L R 228.
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