Criminalizing Sex: A Unified Liberal Theory

ISBN : 9780197507483

Stuart P. Green
400 ページ
156 x 235 mm
Oxford Monographs on Criminal Law and Justice
  • Situates the theory of sexual offenses in the current cultural context, including the #MeToo movement and the in-progress revision of the American Law Institute's Model Penal Code
  • Offers a concise overview of key concepts in political and legal theory, such as consent, autonomy, liberalism, and criminalization
  • Features a sophisticated theoretical discussion of a wide range of sexual offenses

Starting in the latter part of the 20th century, the law of sexual offenses, especially in the West, began to reflect a striking divergence. On the one hand, the law became significantly more punitive in its approach to sexual conduct that is nonconsensual, as evidenced by a major expansion in the definition of rape and sexual assault, and the creation of new offenses like sex trafficking, child grooming, and revenge porn. On the other hand, it became markedly more permissive in how it dealt with conduct that is consensual, a trend that can be seen, for example, in the legalization or decriminalization of sodomy, adultery, and adult pornography. This book explores the conceptual and normative implications of this divergence.
At the heart of the book is a consideration of a deeply contested question: How should a liberal system of criminal law adequately protect individuals in their right not to be subjected to sexual contact against their will, while also safeguarding their right to engage in (private consensual) sexual conduct in which they do wish to participate? The book develops a framework for harmonizing these goals in the context of a wide range of nonconsensual, consensual, and aconsensual sexual offenses (hence, the "unified" nature of the theory) — including rape and sexual assault in a variety of forms, sexual harassment, voyeurism, indecent exposure, incest, sadomasochistic assault, prostitution, bestiality, and necrophilia. Intellectually rigorous, fair-minded, and deeply humane, Criminalizing Sex offers a fascinating discussion of a wide range of moral and legal puzzles, arising out of real-world cases of alleged sexual misconduct - a discussion that is all the more urgent in the age of #MeToo.



Part I. Conceptual Toolbox
Chapter 1. The Sexual Offenses and Sexual Conduct
Chapter 2. Autonomy and Consent
Chapter 3. Criminalization and Liberalism

Part II. Nonconsensual and Unwanted Sex
Subpart A. Proving Nonconsent
Chapter 4. Rape Law Commonalities
Chapter 5. Rape as Unconsented-to Sex
Chapter 6. Rape by Deception
Chapter 7. Rape by Coercion
Subpart B. Presuming Nonconsent
Chapter 8. Incapacity to Consent
Chapter 9. Statutory Rape
Chapter 10. Abuse of Position
Subpart C. Unwanted Sex
Chapter 11. Sexual Harassment as Crime
Subpart D. Assumption of Risk
Chapter 12. Voyeurism
Chapter 13. Indecent Exposure

Part III. Putatively Consensual Sex
Chapter 14. Incest
Chapter 15. Sadomasochistic Assault
Chapter 16. Prostitution

Part IV. Aconsensual Sex
Chapter 17. Bestiality
Chapter 18. Necrophilia


Stuart P. Green is a Distinguished Professor of Law at Rutgers University.

"Stuart Green's Criminalizing Sex tells us why fortifying negative rights to freedom from sexual assault can undermine positive rights to consensual relations. Green considers sex crimes as obscure as necrophilia and as common as prostitution in his wide-ranging study. An engaging and brilliant writer, Green leaves readers more sophisticated consumers of contemporary controversies that swirl around such characters as Brett Kavanaugh, Louis C-K, and Larry Nassar. Highly recommended." - Sherry F. Colb, C.S. Wong Professor of Law, Cornell University

"Stuart Green's Criminalizing Sex is the most important contribution to the scholarly literature regarding sexual offenses in decades. Indeed, it ranks amongst the most important contributions of all time to this literature — all the while displaying insightful attention to recent issues that have sparked broad reconsideration regarding the criminalization of sexual conduct and misconduct. Even those who may disagree with some of his arguments will find themselves grateful for his clear, careful, and insightful analysis. A must-read for scholars, policy-makers, and lay readers alike, Green's book is, quite simply, a masterpiece, by one of the leading criminal law scholars of our generation." - Michelle Dempsey, Professor of Law and Harold Reuschlein Scholar Chair, Villanova University, Charles Widger School of Law

"In this magisterial work, Professor Stuart Green uses his powerful intellect and tender spirit to produce an insightful, rigorous, and sensitive critique of sexual offences law. The book is marked by care, precision and a deep understanding of the law. It provides an overview of all sexual offences, taking the reader back to the starting points to examine how we categorize and label these crimes. I am sure it will come to be recognized as a work of enormous significance in this area of the law." - Jonathan Herring, Vice Dean and Professor of Law, Faculty of Law, University of Oxford and DM Wolfe-Clarendon Fellow in Law, Exeter College, University of Oxford

"An indispensible read for anyone interested in criminal law theory and sexual offenses, Stuart Green's newest book scrutinizes the foundations of prohibitions that target a large variety of sexual misconduct, from rape to necrophilia. His conceptual framework emphasizes, in a liberal tradition, the distinction between consensual and nonconsensual sex. Readers from all over the world will profit from this clear, analytical approach that transcends the boundaries of national law." - Dr Tatjana Hörnle, Professor, Max Planck Max Planck Institute for Foreign and International Criminal Law