Why sexual penetration requires justification

Oxford Journal of Legal Studies

Volumn 27, Issue 3, 2007, Pages 467-491

  Dempsey, Michelle Madden ^a   Herring, Jonathan ^b  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b EXETER COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548513047     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm013     Document Type: Article

References (130)

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 (Oxford: Oxford University Press, 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 (Oxford: Oxford University Press, 2002).
5. J. Gardner, 'Fletcher on Offences and Defences' (2004) 39 Tulsa Law Review 817 at 820.
6. V. Tadros, Criminal Responsibility (Oxford: Oxford University Press, 2005) at 106.
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, Oxford: Oxford University Press).
8. G. Fletcher, Rethinking Criminal Law (Boston: Little Brown, 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. Herder (ed.), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 4th edn, 2000)
15. and V. Tadros, 'Rape and Wrongdoing' (forthcoming, on file with the author).
16. We thank John Gardner for pressing us on this point, despite our refusal to budge.
17. Note further that the quotations from Gardner and Tadros, above n 5-6 may be read as conceptualizing 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.
18. See J. Herring 'Mistaken Sex' [2005] Crim LR 511, 513-514 for further discussion of this issue.
19. Eg Sexual Offences Act 2003 s 79 (2).
20. Eg Gardner and Shute, above n 14 and Tadros, above n 14.
21. This use of prima facie roughly corresponds to that found in W.D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930).
22. For further discussion, see R. Audi, The Good in the Right (Princeton: Princeton University Press, 2004) at 22-25.
23. 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 (Oxford: Oxford University Press, 1991) at 17,
24. 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.
25. 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).
26. In Section 5, we consider the 'moral residue' left behind by justified prima facie wrongs.
27. Fletcher, above n 8.
28. J. Gardner 'The Mark of Responsibility' (2003) 23 OJLS 15.
29. 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.
30. 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.
31. See for further discussion Section 5 below.
32. A. Dworkin, Intercourse (New York: Basic Books, 20th anniversary edn, 2007) at 122.
33. N. Naffine 'Possession: Erotic Love in the Law of Rape' (1994) 57 MLR 10 at 35.
34. 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.
35. Indeed, where the man engages in no physical movements whatsoever, it may not even be appropriate to characterize 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.
36. 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.
37. Following 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 (Oxford: Oxford University Press, 1986).
38. The arguments are discussed in R. A. Duff 'Criminalizing Endangerment' in R. A. Duff and S. Green (eds), Defining Crimes (Oxford, Oxford University Press 2005);
39. C. Finkelstein, 'Is Risk a Harm?' (2003) 151 University of Pennsylvania Law Review 963;
40. A. Von Hirsch, 'Extending the Harm Principle: "Remote" Harms and Fair Imputation' in A. Simester and A. Smith (eds), Harm and Culpability (Oxford: Oxford University Press, 1996);
41. C. Schroeder, 'Corrective Justice and Liability for Increasing Risks' (1990) 37 UCLA Law Review 439, at 442;
42. K. Simons, 'Corrective Justice and Liability for Risk-Creation: A Comment' (1990) 38 UCLA Law Review 113;
43. C. Schroeder 'Corrective Justice, Liability for Risks, and Tort Law' (1990) 38 UCLA Law Review 143 at 160;
44. J. Coleman, Risks and Wrongs (Oxford: Oxford University Press, 1992) at 361-385;
45. D. Husak 'The Nature and Justifiability of Non-Consummate Offenses' (1995) 37 Arizona Law Review 151.
46. Duff, above n 33 at 53.
47. Finkelstein, above n 33 at 973.
48. If due to our bump, for example, she drops what she is carrying and must stop to collect her things before proceeding.
49. 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.
50. For example, it has been estimated that world-wide 39.5 million people are HIV-positive: UNAIDS, AIDS Epidemic Update (2006, Geneva, UNAIDS) at 1.
51. See R v Dica [2004] EWCA Crim 1103, where the Court of Appeal accepted that becoming HIV positive was to suffer grievous bodily harm.
52. 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).
53. C. Cisse, P. Dionne, A. Cathy, V. Mendes, F. Diadhiou, P. Ndiaye 'Vaginal Injuries During Coitus' (1998) 43 Dakar Medicine 135.
54. R. Hoffman and S. Ganti, 'Vaginal Laceration and Perforation Resulting from First Coitus' (2001) 17 Pediatric Emergency Care 113;
55. E. Ahmed, S. Syed, N. Parveen, 'Female Consensual Coital Injuries' (2006) 16 Journal of College Physicians 333.
56. Ibid.
57. M. Anate, 'Vaginal Trauma at Sexual Intercourse in Ilorin, Nigeria. An Analysis of 36 Cases' (1989) 8 West African Journal of Medicine 217.
58. 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.
59. J. Auerbach, C. Wypijewska, K. Brodie, Aids and Behaviour, An Integrated Approach (Washington DC, National Academies Press 1994) at 48.
60. 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.
61. 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.
62. 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.
63. 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.
64. J. Hampton, 'Defining Wrong and Defining Rape' in K. Burgess-Jackson (ed.), A Most Detestable Crime: New Philosophical Essays on Rape (Oxford: Oxford University Press, 1999) 118 at 147.
65. P. Pinheiro, World Report on Violence Against Children (Geneva: United Nations, 2006);
66. S. Walby and J. Allen, Domestic Violence, Sexual Assault and Stalking (London: Home Office, 2004).
67. 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.
68. J. Herman, Trauma and Recovery (New York: Basic Books, 2nd edn 1997).
69. See also, C. A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989) at 147-148.
70. A. Taslitz, 'Willfully Blinded: On Date Rape and Self-Deception' (2005) 28 Harvard Journal of Law & Gender 381 at 385;
71. citing E. Buchwald, P. Fletcher, M. Roth (eds), Transforming a Rape Culture (Minneapolis: Milkweed, 2nd edn 1994).
72. See also, C. Card, 'Rape as a Terrorist Institution' in R. Frey and C. Morris (eds) Violence, Terrorism and Justice (Cambridge: Cambridge University Press, 1991);
73. D. Herman, 'The Rape Culture' in J. Freeman, Women: A Feminist Perspective (Mountain View, CA: Mayfield, 4th edn 1989).
74. MacKinnon, above n 54 at 149.
75. Taslitz, above n 55 at fn 18, citing Buchwald, above n 55.
76. G. Greer, The Female Eunuch (New York: McGraw-Hill Book, 1970), at 8.
77. 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 (Crows Rest, NSW: Allen & Unwin, 2003).
78. In B. Fisher, F. Cullen and M. Turner, The Sexual Victimisation of Women (Washington DC: US Department of Justice, 2000) which found that 10.1% of young American women had suffered rape; a further 10.9% attempted rape and a further 35.5% non-consensual sexual touching.
79. 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.
80. Ibid.
81. NSPCC, Teenage Girls Reveal Unwanted Sexual Experiences (London: NSPCC, 2006).
82. 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.
83. 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.
84. We borrow the Confederate flag example from S. Blackburn 'Group Minds and Expressive Harms' (2001) 60 Maryland Law Review 467, discussed in detail below.
85. See section 5 below.
86. See M. Madden Dempsey and J. Herring, 'What Justifies Sex?' (forthcoming, on file with the authors).
87. E. Anderson and R. Pildes, 'Expressive Theories of Law: A General Restatement' (2000) 148 University of Pennsylvania Law Review 1503 at 1504;
88. 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.
89. Anderson and Pildes, above n 68 at 1504.
90. Blackburn, above n 65 at 469.
91. Blackburn, above n 65 at 470.
92. 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.
93. 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.
94. Blackburn, above n 65 at 470.
95. Margaret Gilbert's On Social Facts (Princeton: Princeton University Press, 1989), discussed at Blackburn, above n 65 at 472-473.
96. Blackburn, above n 65 at 479.
97. 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'.
98. Blackburn, above n 65 at 483.
99. Blackburn, above n 65 at 484.
100. 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.
101. We consider such meanings, along with the other values of sexual penetration, in Dempsey and Herring, above n 67.
102. Wikisaurus, 'sexual intercourse', http://en.wiktionary.org/wiki/ Wikisaurus:sExual_intercourse#Synonyms_.28non-slang.2C_non-euphemism.29 (last visited 12 February, 2007).
103. See also R. Baker, 'Pricks and Chicks: A Plea for Persons' in R. Baker and F. Elliston (eds), Philosophy and Sex (Buffalo, NY:PRometheus Books, 1984), at 263. Our thanks to Marcia Baron for directing us to this latter source.
104. MacKinnon, above n 54 at 128.
105. Baker, above n 82 at 263.
106. Ibid.
107. Ibid.
108. Ibid.
109. See also, G. Lakoff, Women, Fire, and Dangerous Things: What Categories Reveal about the Mind (Chicago: University of Chicago Press, 1987), discussing the link between sex and violence at 409-415. We thank Catharine MacKinnon for directing our attention to this source.
110. It is consistent with our understanding of prima facie wrongdoing that one may be subjected to such wrongdoing without realizing it. Consider Finkelstein's example of those who are exposed to a higher risk of developing cancer, above n 33: On our account, these people are wronged irrespective of whether they realize what has happened to them or whether they conceive themselves as having been wronged.
111. We will return to reasons to regret below in Section 5.
112. We will turn to this question in Dempsey and Herring, above n 67.
113. 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.
114. See Section 5 below.
115. The prima facie wrongfulness of sexual penetration may also be grounded in any of the reasons discussed above (eg. force, harm, risk, etc.).
116. By 'our culture' we refer to the US and UK. 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.
117. 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 (Oxford: Oxford University Press, 1975) at 27, 180 fn 6.
118. We revisit this issue in Dempsey and Herring, above n 67.
119. Depending on circumstances, regret may also generate reason to apologize, 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' (1984) 39 Mind 194, 200. So the question of whether a justified prima facie wrongdoer has reason to apologize, 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.
120. S. Hite, Hite Report (New York: Macmillan, 1976) at 141, cited in Dworkin, above n 27 at 162-163. Hite's point implies that the values of sexual penetration can be realized without the use of force, but we take no position on that issue here.
121. For a general discussion of political lesbian-feminist separatism, see K. Rudy, 'Radical Feminism, Lesbian Separatism, and Queer Theory' (2001) 27 Feminist Studies 190.
122. J. Butler, Gender Trouble: Feminism and the Subversion of Identity (London: Routledge, 1990).
123. Butler would not characterize 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).
124. 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).
125. Ibid.
126. 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.
127. N. Lacey, Unspeakable Subjects (Oxford: Hart, 1998) at 118-121.
128. See eg H. Gross, 'Rape, Moralism and Human Rights' [2007] Crim L R 193,
129. and J Herring 'Human Rights and Rape: A Reply to Gross' [2007] Crim L R 228.
130. Dempsey and Herring, above n 67.