Justifying and Excusing Sex

Justifying and Excusing Sex Criminal Law, Philosophy https://doi.org/10.1007/s11572-018-9470-0 ORIGINAL PAPER Jesse Wall © Springer Science+Business Media B.V., part of Springer Nature 2018 Abstract This article aligns two complementary claims: that sexual penetration (itself) should be considered a wrong and that consent requires express words and conduct that manifest a person’s willingness or acquiescence towards the spe- cific act. If sexual penetration is a wrong, it will only be justified if there are rea - sons that permit the action (‘guiding reasons’) and if these were the ones that the defendant acted on (‘explanatory reasons’). A person’s internal attitude of will- ingness or acquiescence (his or her ‘attitudinal consent’) 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 (‘expressive consent’) 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 require- ment of expressive consent, the criminal law is unable to capture the culpability of defendants whose deliberation over the use of force on another person (to achieve penetration) did not include the other http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Criminal Law and Philosophy Springer Journals

Justifying and Excusing Sex

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Publisher
Springer Netherlands
Copyright
Copyright © 2018 by Springer Science+Business Media B.V., part of Springer Nature
Subject
Law; Theories of Law, Philosophy of Law, Legal History; Philosophy of Law; Criminal Law; Ethics
ISSN
1871-9791
eISSN
1871-9805
D.O.I.
10.1007/s11572-018-9470-0
Publisher site
See Article on Publisher Site

Abstract

Criminal Law, Philosophy https://doi.org/10.1007/s11572-018-9470-0 ORIGINAL PAPER Jesse Wall © Springer Science+Business Media B.V., part of Springer Nature 2018 Abstract This article aligns two complementary claims: that sexual penetration (itself) should be considered a wrong and that consent requires express words and conduct that manifest a person’s willingness or acquiescence towards the spe- cific act. If sexual penetration is a wrong, it will only be justified if there are rea - sons that permit the action (‘guiding reasons’) and if these were the ones that the defendant acted on (‘explanatory reasons’). A person’s internal attitude of will- ingness or acquiescence (his or her ‘attitudinal consent’) 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 (‘expressive consent’) 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 require- ment of expressive consent, the criminal law is unable to capture the culpability of defendants whose deliberation over the use of force on another person (to achieve penetration) did not include the other

Journal

Criminal Law and PhilosophySpringer Journals

Published: May 31, 2018

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