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Justifying and Excusing Sex

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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 specific act. If sexual penetration is a wrong, it will only be justified if there are reasons 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 willingness 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 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 (to achieve penetration) did not include the other person’s expression of willingness to engage in a penetrative sexual act.

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Notes

  1. See R. v. J.A., 2011 S.C.C. 28, [2011] 2 S.C.R. 440, [23]: “Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question”; R. v. Olugboja, [1982] Q.B. 320, 321 (CA): “‘consent’ … covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other.”; R. v. Millar, [1998] Q.C.A. 276, [2000] 1 Q.d. R. 437, [7]: “It is in the nature of things rare for consensual conduct involving intimacy of this kind to be preceded by formal offer and acceptance. In some instances, consent is capable of being inferred from acquiescence in the continuation of the activity.”

  2. See Heidi M Hurd, “The Moral Magic of Consent”, Legal Theory 2 (1996): pp. 121–146, 124; Larry Alexander, “The Moral Magic of Consent (II)”, Legal Theory 2 (1996): pp. 165–174, 166; Seana Valentine Shiffrin, “Promising, Intimate Relationships, and Conventionalism”, Philosophical Review 117(4) (2008): pp. 481–524; Joshua Dressler, “Where We Have Been, and Where We Might Be Going: Some Cautionary Reflections on Rape Law Reform”, Cleveland State Law Review 46(3) (1998): pp. 409–442.

  3. Peter Westen, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defence to Criminal Conduct (Burlington, VT: Ashgate, 2004), pp. 4–5, 4: “Factual Attitudinal Consent”.

  4. See Nathan Brett, “Sexual Offenses and Consent”, Canadian Journal of Law & Jurisprudence 11(1) (1998): pp. 69–88; Stephen J Schulhofer, “Rape in the Twilight Zone: When Sex is Unwanted But Not Illegal”, Suffolk University Law Review 38(2) (2005): pp. 415–425, 422; David P Bryden, “Redefining Rape”, Buffalo Criminal Law Review 3(2) (2000): pp. 317–512, 426; Lois Pineau, “Date Rape: A Feminist Analysis”, Law and Philosophy 8(2) (1989): pp. 217–243, 238–239; Tom Dougherty, “Yes Means Yes: Consent as Communication”, Philosophy and Public Affairs 43(3) (2015): pp. 224–253, 234.

  5. See D.C. Code, § 22-3001(4) (2018) (“words or overt actions indicating a freely given agreement”); Minn. Stat., § 609.341(4) (2017) (“words or overt actions by a person indicating a freely given present agreement”); 13 V.S.A., § 3251(3) (2017) (“words or actions by a person indicating a voluntary agreement”); Rev. Code Wash. (A.R.C.W.), § 9A.44.010(7) (2017) (“actual words or conduct indicating freely given agreement”); 940 Wis. Stat. Ann., § 940.225(4) (2018) (“words or overt actions … indicating a freely given agreement”); see also Stephen J Schulhofer, “Consent: What It Means and Why It’s Time to Require It”, University of the Pacific Law Review 47(4) (2016): pp. 665–681, 669.

  6. Westen, The Logic of Consent, p. 5: “Factual Expressive Consent”.

  7. See, for instance, Sexual Offences Act 2003 (UK), ss. 1(1)(b), 2(1)(c), 3(1)(c), and 4(1)(c); Criminal Code R.S.C. 1985 c. C-46, ss. 153.1(1) and 265(1)(a); Crimes Act 1900 (NSW), ss. 61I, 61J(1), and 61JA(1)(a); Criminal Code Act 1899 (Qld), ss. 349(2) and 352(1)(b); Criminal Law Consolidation Act 1935 (SA), ss. 48, 48A, and 51(2)(a); Criminal Code Act 1924 (Tas), ss. 185 and 186; Crimes Act 1958 (Vic), ss. 38(1)(b), 39(1)(b), 40(1)(c), 41(1)(c), 42(1)(b), 43(2)(a), and 47(1)(b); Criminal Code Act Compilation Act 1913 (WA), ss. 325(1) and 326(1); Crimes Act 1961 (NZ), ss. 128(2)(a) and 128(3)(a).

  8. John Gardner, “Fletcher on Offences and Defences”, Tulsa Law Review 39(4) (2004): pp. 817–827, 820; K Campbell, “Offence and Defence”, in IH Dennis (ed.), Criminal Law and Justice: Essays from the W. G. Hart Workshop, 1986 (London: Sweet & Maxwell, 1987), p. 82; Stephen Shute, “Second Law Commission Consultation Paper on Consent: (1) Something Old, Something New, Something Borrowed: Three Aspects of the Project”, Criminal Law Review (1996): pp. 684–693, 690; Victor Tadros, Criminal Responsibility (Oxford and New York: Oxford University Press, 2005): pp. 106–107.

  9. Michelle Madden Dempsey and Jonathan Herring, “Why Sexual Penetration Requires Justification”, Oxford Journal of Legal Studies 27(3) (2007): pp. 467–491.

  10. George P Fletcher, Rethinking Criminal Law (Boston and Toronto: Little Brown, 1978), p. 707; Jesse Wall, “Sexual Offences and General Reasons Not to Have Sex”, Oxford Journal of Legal Studies 35(4) (2015), pp. 777–798; note that, unlike Fletcher and Wall, Dempsey and Herring were “not directly concerned with questions of criminalisation”—their aim was to “simply map the moral landscape of sexual penetration”. See Madden Dempsey and Herring, “Sexual Penetration”, 467.

  11. John Gardner, “Justifications and Reasons”, in AP Semester and ATH Smith (eds.), Harm and Culpability (Oxford and New York: Clarendon Press, 1996), pp. 103–129, 121.

  12. Joseph Raz, Practical Reason and Norms (2nd ed., Oxford and New York: Oxford University Press, 1999), pp. 16–20, 18: “We should admit that we use reasons in both ways. We could even distinguish between two notions of reason. … Only reasons understood as facts are normatively significant; only they determine what ought to be done. … The other notion of reasons is relevant exclusively for explanatory purposes and not at all for guiding purposes.”; Gardner, “Justifications and Reasons”, pp. 103–129, 103.

  13. See Gardner, “Justifications and Reasons”, p. 122: “For by their nature excuses take the world as the defendant justifiably sees it rather than as it is. They look to what the defendant believes to be applicable reasons for action, so as long as she does so on the basis of genuinely applicable reasons for belief.”

  14. See, for instance, Sexual Offences Act 2003 (UK), ss. 1(1)(b), 2(1)(c), 3(1)(c), and 4(1)(c); Criminal Code R.S.C. 1985 c. C-46, ss. 153.1(1) and 265(1)(a); Crimes Act 1900 (NSW), ss. 61I, 61J(1), and 61JA(1)(a); Criminal Code Act 1899 (Qld), ss. 349(2) and 352(1)(b); Criminal Law Consolidation Act 1935 (SA), ss. 48, 48A, and 51(2)(a); Criminal Code Act 1924 (Tas), ss. 185 and 186; Crimes Act 1958 (Vic), ss. 38(1)(b), 39(1)(b), 40(1)(c), 41(1)(c), 42(1)(b), 43(2)(a), and 47(1)(b); Criminal Code Act Compilation Act 1913 (WA), ss. 325(1) and 326(1); Crimes Act 1961 (NZ), ss. 128(2)(a) and 128(3)(a).

  15. Wall, “General Reasons”, p. 781.

  16. Tadros, Criminal Responsibility, p. 106: “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 balanced or outweighed by the fact that it was consensual. There is no such prima facie reason at all.”

  17. Vera Bergelson, “The Meaning of Consent”, Ohio State Journal of Criminal Law 12(1) (2014): pp. 171–180, 177: “Absent the victim’s non-consent, there is nothing wrongful or regrettable in the act of taking the property of another or having sex or visiting someone’s home.”

  18. Gardner, “Fletcher on Offences and Defences”, p. 820: “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 only becomes one by virtue of being non-consensual.”

  19. Bergelson, “The Meaning of Consent”, p. 177.

  20. Bergelson, “The Meaning of Consent”, p. 177: “the perpetrator’s act is prima facie morally neutral; it becomes criminal due to the attending circumstances (non-consent). Theft, rape, trespass, and kidnapping provide examples of the inculpatory non-consent.”

  21. Wall, “General Reasons”, p. 782.

  22. John Child and David Ormerod, Smith, Hogan, and Ormerod’s Essentials of Criminal Law (2nd ed., Oxford: Oxford University Press, 2017), p. 279.

  23. Dempsey and Herring, “Sexual Penetration”, p. 467.

  24. Dempsey and Herring, “Sexual Penetration”, p. 469.

  25. Dempsey and Herring, “Sexual Penetration”, p. 477, citing R Hoffman and S Ganti, “Vaginal Lacerations and Perforation Resulting from First Coitus”, Pediatric Emergency Care 17(2) (2001): pp. 113–114; E Ahmed and N Parveen, “Female Consensual Coital Injuries”, Journal of the College of Physicians and Surgeons Pakistan 16(5) (2006): pp. 333–335.

  26. Dempsey and Herring, “Sexual Penetration”, p. 481.

  27. Dempsey and Herring, “Sexual Penetration”, p. 485.

  28. Dempsey and Herring, “Sexual Penetration”, p. 473.

  29. Wall, “General Reasons”, p. 792: “The application of penetrative force is, however, the infringement of the rights of self-ownership. It is this rights-infringement that is able to explain why there are general (but defeasible) reasons not to apply penetrative force to another person.”

  30. GA Cohen, Self-Ownership, Freedom, and Equality (Cambridge, New York, and Melbourne: Cambridge University Press, 1995), p. 12, cited by Nicholas Bunnin and Jiyuan Yu, The Blackwell Dictionary of Western Philosophy (Oxford: Blackwell Publishing, 2004), p. 630: “that each person enjoys, over herself and her powers, full and exclusive rights of control and use”; see also Cohen, Self-Ownership, Freedom, and Equality, p. 213.

  31. Dempsey and Herring, “Sexual Penetration”, p. 473.

  32. Wall, “General Reasons”, p. 793.

  33. Schulhofer, “Consent: What It Means and Why It’s Time to Require It”, p. 666.

  34. Wall, “General Reasons”, p. 793.

  35. Wall, “General Reasons”, p. 798: “Consent is a double-edged sword in this regard: the ‘protected reasons’ against performing the action are premised upon rights of self-ownership and the ‘unexcluded reasons’ in favour of performing the action are unexcluded by the exercise of rights of self-ownership. … I suggest that the protected reason not to perform the action (that is defeated by an unexcluded reason in favour of the action) does not remain as a type of wrong that generates residual regret. This is because the normative force of self-ownership can only be on one side of the conflict.”

  36. Joseph Raz, From Normativity to Responsibility (Oxford and New York: Oxford University Press, 2011), p. 36.

  37. Raz, Practical Reason and Norms, p. 17.

  38. Gerald Beaulieu, “Can Explanatory Reasons Be Good Reasons for Action?”, Metaphilosophy 44(4) (2013): pp. 440–450, 448.

  39. Gerald Beaulieu, “Can Explanatory Reasons Be Good Reasons for Action?”, p. 448.

  40. Gardner, “Justifications and Reasons”, p. 111; see also John Gardner, “The Mysterious Case of the Reasonable Person”, University of Toronto Law Journal 51(3) (2001): pp. 273–308, 275–276.

  41. Gardner, “Justifications and Reasons”, p. 111: “it is a basic principle of practical rationality … that one should always act for some undefeated reason, i.e., that at least one of the (guiding) reasons in favour of doing as one did should have been one’s (explanatory) reason for doing it.”

  42. Bergelson, “The Meaning of Consent”, p. 177; see also Gardner, “Justifications and Reasons”, p. 107: “justification is called for only when one also has some reason not to act, believe, etc. as one does. The unobjectionable, in other words, is in no need of justification.”

  43. Gardner, “Justifications and Reasons”, p. 117.

  44. Gardner, “Justifications and Reasons”, p. 117.

  45. Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford and New York: Clarendon Press, 1979), pp. 17–19.

  46. Gardner, “Justifications and Reasons”, p. 115.

  47. Gardner, “Justifications and Reasons”, p. 116: “So far as the criminal law is concerned all reasons in favour of performing the criminalized action are defeated by virtue of the law’s … authority”.

  48. John Gardner, “Justification under Authority”, Canadian Journal of Law & Jurisprudence 23(1) (2010): pp. 71–98, 78–80; Wall, “General Reasons”, p. 796 (footnote omitted): “Since the act of consent is permissive or empowering, it does not itself provide a reason in favour of performing the action … The justification of consent operates to enable the consentor to include reasons in favour of an action that would otherwise be excluded from consideration.”

  49. Gardner, “Justification under Authority”, p. 75: “To consent is to exercise a normative power to permit (or empower) another to do something that the other has, or would otherwise have, a duty not to do (or no power to do).”

  50. Gardner, “Justifications and Reasons”, p. 117: “What the law does, which nevertheless creates a role for some justificatory defences, is to provide us with cancelling permissions to perform, under certain specified conditions, the actions which it criminalizes. … The same is not true in a case to which the definition of the crime does not extend, i.e., in which ‘an element of the offence is negated’.”

  51. See Gardner, “Justifications and Reasons”, p. 117; Gardner, “Fletcher on Offences and Defences”, p. 823; John Gardner, “In Defence of Offences and Defences”, Jerusalem Review of Legal Studies 4(1) (2012): pp. 110–128, 118–121.

  52. Gardner, “Justifications and Reasons”, p. 117 (emphasis added).

  53. Raz, Practical Reason and Norms, pp. 16–20.

  54. Gardner, “Justifications and Reasons”, p. 103.

  55. Gardner, “Justifications and Reasons”, pp. 109–110.

  56. Gardner, “Justifications and Reasons”, p. 103.

  57. Gardner, “Justifications and Reasons”, p. 117.

  58. Gardner, “Justifications and Reasons”, p. 119 (footnote omitted): “To excuse an action is not, of course, to justify that action. Rather, one justifies one’s belief that the action is justified”.

  59. Bergelson, “The Meaning of Consent”, p. 179.

  60. George P Fletcher, “The Nature of Justification”, in Stephen Shute, John Gardner, and Jeremy Horder (eds.) Action and Value in Criminal Law (Oxford and New York: Clarendon Press, 1993), pp. 175–186, 178.

  61. Fletcher, “The Nature of Justification”, p. 177.

  62. Fletcher, “The Nature of Justification”, p. 178.

  63. Gardner, “Justifications and Reasons”, pp. 120–122.

  64. Gardner, Justifications and Reasons”, p. 120: “By ‘reasonable’ here is meant, in my view, much the same as ‘justified’.”; see also Gardner, “The Mysterious Case of the Reasonable Person”.

  65. Gardner, “Justifications and Reasons”, p. 120.

  66. Heidi M Hurd, “Justification and Excuse, Wrongdoing and Culpability”, Notre Dame Law Review 74(5) (1999): pp. 1551–1573, 1558.

  67. Hurd, “Justification and Excuse”, p. 1558.

  68. Hurd, “Justification and Excuse”, p. 1558.

  69. Heidi M Hurd, “Justifiably Punishing the Justified”, Michigan Law Review 90(8) (1992): pp. 2203–2324, 2207.

  70. See Hurd, “Justifiably Punishing the Justified”, p. 2207: “An actor is epistemically justified in believing an action to be right if, under the circumstances, she has invested a reasonable amount of time, talent, diligence, and resources to acquire information about her circumstances and to determine the demands of morality in such circumstances.”; compare Gardner, “Justifications and Reasons”, p. 120: “It is not enough that one made a mistake as to justification … There must have been an undefeated reason for one’s belief, emotion, etc.”

  71. Fletcher, “The Nature of Justification”, p. 179.

  72. Fletcher, “The Nature of Justification”, p. 179.

  73. Fletcher, “The Nature of Justification”, p. 179.

  74. Fletcher, “The Nature of Justification”, p. 179.

  75. Hurd, “Justification and Excuse”, p. 1565.

  76. Hurd, “Justification and Excuse”, p. 1565.

  77. Hurd, “Justification and Excuse”, p. 1566.

  78. Fletcher, “The Nature of Justification”, p. 178.

  79. Gardner, “Justifications and Reasons”, p. 121 (footnote omitted).

  80. See, for instance, Sexual Offences Act 2003 (UK), ss. 1(1)(c), 2(1)(d), 3(1)(d), and 4(1)(d); Criminal Code R.S.C. 1985 c. C-46, ss. 153.1(5), 153.1(6), 265(4), and 273.2; Crimes Act 1900 (NSW), ss. 61HA(3)(b) and 61HA(3)(c); Criminal Code Act 1899 (Qld), s. 24; Criminal Law Consolidation Act 1935 (SA), ss. 47, 48, and 48A; Criminal Code Act 1924 (Tas), s. 14A; Crimes Act 1958 (Vic), ss. 36A, 36B, 38(1)(c), 39(1)(c), 40(1)(d), 41(1)(d), 42(1)(d), and 47(1)(c)(ii); Criminal Code Act Compilation Act 1913 (WA), s. 24; Crimes Act 1961 (NZ), ss. 128(2)(b) and 128(3)(b).

  81. Kimberly Kessler Ferzan, “Consent, Culpability, and the Law of Rape”, Ohio State Journal of Criminal Law 13(2) (2016): pp. 397–439, 400: “permissibility should track wrongdoing; that is, permissibility should depend on the underlying act’s nature and quality and not the defendant’s culpability”.

  82. Heidi Hurd, “The Normative Force of Consent”, in Peter Schaber and Andreas Müller (eds.), The Routledge Handbook of the Ethics of Consent (Routledge, 2018) (forthcoming), p. 2 as cited in Ferzan, “Consent, Culpability, and the Law of Rape”, p. 405; see also Larry Alexander, “The Ontology of Consent”, Analytic Philosophy 55(1) (2014): pp. 102–113.

  83. Hurd, “The Moral Magic of Consent”, p. 124, cited by Vera Bergelson, “The Meaning of Consent”, p. 172.

  84. Alexander, “The Moral Magic of Consent (lI)”, p. 166.

  85. Hurd, “The Moral Magic of Consent”, p. 125.

  86. Shiffrin, “Promising, Intimate Relationships, and Conventionalism”, p. 500: “The idea that an agent can intentionally form an obligation through the exercise and expression of her will alone (and not by first transforming the state of affairs around her) comes part and parcel with any plausible conception of an autonomous agent.”; Hurd, “The Normative Force of Consent”, p. 2 as cited in Ferzan, “Consent, Culpability, and the Law of Rape”, p. 405: “To respect persons as autonomous is thus to recognize them as the givers and takers of permissions and obligations. … One very powerful means by which persons will their own moral laws—by which they alter the moral landscape for themselves and for others—is by granting or withholding consent to other’s actions.”

  87. Hurd, “Justification and Excuse”, p. 1558.

  88. Raz, From Normativity to Responsibility, p. 36; see also Beaulieu, “Can Explanatory Reasons Be Good Reasons for Action?”, p. 440.

  89. Gardner, “Justifications and Reasons”, p. 120.

  90. Gardner, “Justifications and Reasons”, p. 121.

  91. Gardner, “Justifications and Reasons”, p. 121.

  92. Model Penal Code, § 213.0(3) (Am. Law Inst., Tentative Draft No. 2, 2016); see also Schulhofer, “Consent: What It Means and Why It’s Time to Require It”; Ferzan, “Consent, Culpability, and the Law of Rape”, p. 414.

  93. Gardner, “Justifications and Reasons”, p. 117; Gardner, “Justification under Authority”, pp. 78–80.

  94. Model Penal Code, § 213.0(3) (Am. Law Inst., Tentative Draft No. 2, 2016).

  95. Hurd, “Justification and Excuse”, p. 1558.

  96. Ferzan, “Consent, Culpability and the Law of Rape”, pp. 433–435.

  97. Model Penal Code, § 213.0(3) (Am. Law Inst., Tentative Draft No. 2, 2016).

  98. My thanks to an anonymous referee for raising this possibility.

  99. Hurd, “Justification and Excuse”, p. 1565.

  100. My thanks to an anonymous referee for raising this possible distinction.

  101. Terry P Humphreys and Mélanie M Brousseau, “The Sexual Consent Scale—Revised: Development, Reliability, and Preliminary Validity”, Journal of Sex Research 47(5) (2010): pp. 420–428, 421; see also Aya Gruber, “Consent Confusion”, Cardozo Law Review 38(2) (2016): pp. 415–458, 442.

  102. Gruber, “Consent Confusion”, p. 448; see also Humphreys and Brousseau, “The Sexual Consent Scale”, p. 422.

  103. Susan E Hickman and Charlene L Muehlenhard, “‘By the Semi-Mystical Appearance of a Condom’: How Young Women and Men Communicate Sexual Consent in Heterosexual Situations”, Journal of Sex Research 36(3) (1999): pp. 258–272, 259.

  104. Gruber, “Consent Confusion”, p. 443, citing Michael W Wiederman, “The Gendered Nature of Sexual Scripts”, The Family Journal 13(4) (2005): pp. 496–502.

  105. Ferzan, “Consent, Culpability and the Law of Rape”, p. 421; Douglas N Husak and George C Thomas III, “Rapes without Rapists: Consent and Reasonable Mistake”, Philosophical Issues 11 (2001): pp. 86–117, 107; Robin Charlow, “Negotiating Sex: Would it Work?”, comment accompanying Michelle J Anderson, “Rape Law Reform Based on Negotiation: Beyond the No and Yes Models”, in Paul H Robinson, Stephen P Garvey, and Kimberly Kessler Ferzan (eds.), Criminal Law Conversations (Oxford and New York: Oxford University Press, 2009), pp. 310–311.

  106. Sherry F Colb, “Conversation Before Penetration?”, comment accompanying Anderson, “Rape Law Reform Based on Negotiation: Beyond the No and Yes Models”, pp. 312–313, 313.

  107. Lois Pineau, “A Response to My Critics”, in Leslie Francis (ed.), Date Rape: Feminism, Philosophy, and the Law (University Park, Pennsylvania: Pennsylvania State University Press, 1996), pp. 63–107, 84.

  108. Pineau, “A Response to My Critics”, p. 84.

  109. John Gardner, “The Opposite of Rape”, Oxford Journal of Legal Studies 38(1) (2018): pp. 48–70, 68 (footnote 50): “Pineau’s final word ‘sacrificed’, it seems to me, might be too strong. ‘Left unaccommodated in the law’ seems better.”

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    Jesse Wall

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Wall, J. Justifying and Excusing Sex. Criminal Law, Philosophy 13, 283–307 (2019). https://doi.org/10.1007/s11572-018-9470-0

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