Bestiality

The focus of this chapter is on bestiality, involving sex between humans and nonhuman animals. Some animal rights and feminist scholars have suggested that bestiality should be thought of as a form of nonconsensual sex. But to do so presupposes that animals can be harmed or wronged within the meaning of the liberal harm and wrong principles, which is far from clear. And even assuming that it does make sense to think of bestiality as involving nonconsensual sex, it needs to be asked if there is a coherent justification for criminalizing such conduct while so many other serious harms and wrongs to animals, including with respect to their sexual functions (such as breeding, neutering, spaying, and castrating) go unrestricted. Central here is the question of whether bestiality fits within the narrow sliver of animal mistreatment that is, under current law, considered sufficiently cruel to merit criminalization.

Indecent Exposure

This chapter considers the flip side of voyeurism—namely, indecent exposure, or exhibitionism. Whereas in voyeurism, the offender views his victim’s private activities without her consent, in indecent exposure, he subjects her to his own intimate activities. The interests and rights at stake in the two offenses are thus complementary. This chapter argues that criminal sanctions for indecent exposure are ultimately justified not on the basis of its harms, which are relatively minor, but rather on the basis of its tendency to cause offense. Unlike incest and sadomasochistic assault, which are usually performed in private, indecent exposure is normally committed in public and specifically intended to cause shock, distress, or disgust. On the other hand, some exhibitionists will have legitimate reasons for exposing themselves. They may be engaging in political protest, participating in an artistic endeavor, communing with nature, or exploring sensual pleasure. The chapter suggests that under liberal principles, the law of indecent exposure should be applied only to the most egregious and offensive sorts of exposure for which there is no legitimate justification.

Voyeurism

This chapter considers the offense of voyeurism, where the offender infringes on the complainant’s autonomy by intruding on her sexual privacy without her consent. Rather than ask if the alleged victim expressed actual consent, it will sometimes be appropriate to ask if she gave constructive consent, based on her assuming the risk of some potential harm or wrong. Many victims of voyeurism probably never know that they have been victimized and thus do not suffer the usual sort of psychological trauma that victims of sexual misconduct often endure. Nevertheless, voyeurism clearly involves a serious wrong. In that sense, it constitutes what has been referred to in the criminal law theory literature as a harmless wrong. There is also another conceptual challenge that voyeurism presents. In order for the offense to be committed, the victim must have had a reasonable expectation of privacy. But this raises the question of exactly what expectations of privacy should be considered reasonable in a world in which new technologies and new social practices—including social media, smartphones, sexting, and revenge porn—have simultaneously lowered the threshold of what society regards as private while increasing the potential for harm to individuals.

Incapacity to Consent

This is the first of three chapters that consider paradigms of rape under which nonconsent is presumed on the basis of certain kinds of background conditions. The particular focus here is on cases in which complainants are said to lack the capacity to consent. Persons who are asleep, unconscious, or in a persistent vegetative state can be categorically and uniformly held to be incapable of consenting, without much risk of overinclusiveness. But the situation presented by persons suffering from intellectual or communicative deficits or who are intoxicated is more variegated and complex. There is a danger that if incapacity in these spheres is defined too broadly, some people who suffer from mental disabilities or who drink for the purpose of making themselves less inhibited might be denied the opportunity to have genuinely consensual sex.

Necrophilia

This chapter offers a discussion of necrophilia, an offense that has been almost completely ignored in the criminal law theory literature but that raises interesting moral and conceptual issues—about the limits of the harm and wrong principles and the problem of the so-called missing subject. After ruling out a harm to third parties rationale, it suggests that the most plausible argument for criminalizing necrophilia is that it causes harm to the deceased person whose corpse is mistreated. But does it make sense to say that a person can suffer harms or wrongs postmortem? The question has an ancient philosophical pedigree and remains contentious. The chapter argues that the wrong caused by necrophilia is not to the corpse as such but to the antemortem person the corpse once embodied, who had an interest in maintaining her sexual autonomy while she was still alive.

Abuse of Position

This chapter focuses on abuse of position statutes, under which it is a crime for a person in a position of authority (such as a police officer, prison guard, health care professional, educator, or clergy person) to have sex with a competent adult under his care or control (a suspect or witness, inmate, patient, adult student, or congregant, as the case may be). It considers two distinct rationales for such statutes: to prevent coercive or exploitative sex and to protect institutional roles. Once again, there is a potential for overcriminalization. The challenge is to determine which kinds of hierarchical relationships in which kinds of industries are most likely to justify a presumption of nonconsent, a challenge that is all the more important in the wake of the #MeToo movement.

Rape Law Commonalities

This chapter focuses on a range of issues common to all six of the rape paradigms that are described in subsequent chapters. It begins with a brief historical overview of rape law, observing a significant expansion in the definition of rape and sexual assault along two axes, namely, the kinds of sexual contact covered and the means by which nonconsent is manifested. It then considers the disparate ways in which the labels rape and sexual assault have been used, and makes an argument for retaining the term rape in the criminal law. Next, it considers how the physical act requirement in rape and sexual assault has been defined in a range of criminal codes, finally touching on some of the challenges of offense grading.

Sadomasochistic Assault

This chapter considers sadomasochistic assault. Although no offense in the criminal law is specifically labeled as such, this kind of conduct has been prosecuted under general (nonsexual) assault and battery provisions. Consent normally is allowed as a defense to charges of assault involving other kinds of (nonsexual) consensual pain infliction, such as occurs in surgery, sports, tattooing, and religious flagellation. Sadomasochistic assault prosecutions differ in that the consent or volenti defense is generally disfavored. The chapter offers an argument for why consensual sadomasochistic sex is more wrongful than these others kinds of consensual harm causing, based on the doctrine of double effect (the idea that it is permissible to cause harm as a side effect of bringing about a good result, even though it would not be permissible to cause such harm as a means to bringing about the same good end). But even if that argument is correct, it would not necessarily justify SM’s criminalization. Also considered here is the problem of how to distinguish between SM that is truly consensual and that which is not. Given the role playing it sometimes involves, there exists a possibility that without appropriate safeguards, SM might serve as a cover for what is essentially rape and sexual assault.

Sexual Harassment as Crime

This chapter shifts the focus from sex that is nonconsensual to that which is unwanted or unwelcome. Rather than asking if we are justified in continuing to criminalize conduct that is currently criminalized, the question here is whether there is some sex-related conduct that is not currently criminalized that should be treated as such. The particular focus is on sexual harassment. The chapter features a discussion of three countries that treat sexual harassment as a crime: Belgium, France, and Israel. It offers three factors to consider in distinguishing between sexual harassment and sexual assault: first, whether the conduct was nonconsensual or merely unwelcome; second, whether the conduct involved physical contact with the complainant; and third, whether, in the case of quid pro quo conduct, there was a threat or merely an offer.

Rape by Deceit

This chapter considers the offense of rape by deceit. Unlike rape as nonconsensual sex, consent here is communicated but is found to be defective by virtue of the complainant’s false belief, typically induced by the defendant’s deceit. Should it be rape if a defendant falsely represents himself as being free of STDs? What if he obtains communicative consent by falsely claiming to be single? The common law was extremely limited in what it recognized as impermissible deceit. With the reconceptualization of rape as nonconsent-focused, reformers have begun considering the possibility of broadening the definition of rape by deceit. But how broad is too broad? The problem is that almost everyone, at some point, has engaged in or been the target of some form of deception in the context of sex, and any of these deceptions could serve as a “but for” cause of another’s consenting to sex. The question is how to sort out those deceptions that should count for purposes of rape (or another, lesser offense) and those that should not. The particular focus here is on cases in which a defendant obtains invalid communicative consent through fraudulent medical procedures, impersonation, or lying about matters related to STDs.