Paper 2 done except for author info

1 files changed, 401 insertions, 0 deletions

diff --git a/papers/2.tex b/papers/2.tex
new file mode 100644
index 0000000..f15434d
--- /dev/null
+++ b/papers/2.tex
@@ -0,0 +1,401 @@
+\chapter{Criminalizing `Unjust Sex'}
+\chaptermark{Criminalizing 'Unjust Sex'}
+
+\titleformat{\section}[block]{\normalfont\scshape\large\bfseries}{}{0pt}{}
+\begin{quote}
+    
+This essay examines the limitations of current rape law and advocates
+for legal reform to better protect sexual autonomy. Sexual autonomy,
+defined as the right to freely choose and refuse sexual interactions, is
+foundational to liberal legal principles. However, the concept of
+`unjust sex', which involves manipulation, coercion, or exploitation of
+agency without physical force, reveals gaps in existing legal
+frameworks. Drawing on Ann J. Cahill's work, the essay argues that
+unjust sex undermines agency and autonomy, causing significant harm that
+warrants criminalization. While rape nullifies sexual autonomy outright,
+unjust sex limits the individual's capacity for meaningful
+self-determination, reinforcing systemic power imbalances. The essay
+addresses concerns about potential overreach, arguing that criminalizing
+unjust sex defends autonomy without imposing moralistic control. It
+concludes that protecting sexual autonomy requires acknowledging and
+addressing the harm caused by unjust sex.
+\end{quote}
+
+\section*{Introduction}
+Sexual autonomy -- the ability to choose and shape the sexual relations
+one has -- is a right as fundamental as any other type of autonomy and
+is legally protected. The law on sexual offences defines them as
+`violations of the right to sexual self-determination' (Hörnle 2016,
+851). Following a liberal perspective, it has been set out to strengthen
+sexual autonomy by loosening the grip of the law and decriminalizing
+certain sexual acts, e.g. homosexuality and adultery. The notion of a
+liberal criminal law concerning sexual offences has thus been strongly
+associated with decriminalization, especially in the second half of the
+20\textsuperscript{th} century. In this essay, however, I will argue for
+the reform of laws pertaining to sexual offences to better protect
+sexual autonomy by criminalizing sexual acts lacking valid and robust
+consent including forms of `unjust sex', as termed by Ann J. Cahill
+(2016). The argument will follow from the description of unjust sex as
+undermining the victim's agency, which is crucial for the establishment
+of autonomy. I will argue that it can be in the interest of a liberal
+theory of law to criminalize more, in order to protect the legal asset
+of sexual autonomy. First, I will introduce the notion of sexual
+autonomy and its dual dimensions of positive and negative liberty. Next,
+I will provide a brief historical overview of how the focus of rape law
+has evolved over time, highlighting the shift from a focus on marital
+rights to a recognition of autonomy and consent as central concerns.
+Then, I will discuss the concept of unjust sex and why it undermines
+sexual agency. I will argue that unjust sex represents a significant
+harm to sexual autonomy which justifies its criminalization. Finally, I
+will address concerns about the criminalization of unjust sex and
+conclude.
+
+\section*{Sexual Autonomy}
+Humans have a right to sexual autonomy, as much as they have a right to
+autonomy in general. The desire to be able to choose and control the way
+in which one engages in sexual activities is a core characteristic of
+human sexuality. It allows the individual to express themselves in a
+certain way while also allowing other people to take part in a most
+intimate area of the human body and psyche. This right, however, must
+always be understood in relational terms that involve all sexual
+partners. Everyone concerned has the right not to have their right to
+sexual autonomy overridden. Thus, sexual autonomy is restricted by the
+sexual autonomy of others (Schulhofer 2000, 99).
+
+Sexual autonomy is discussed in terms of two notions of liberty or
+freedom. Firstly, it includes the positive liberty, i.e. the freedom, to
+engage in consensual acts according to one's own desires and needs
+(Hörnle 2016, 859). This is an important aspect of liberal thought, the
+idea that it is the individuals themselves who can shape their
+expression of sexuality how they wish. It is crucial, however, that
+consent is established. Otherwise, the autonomy of the sexual partners
+involved is compromised. This is where negative freedom enters: Negative
+freedom when it comes to sexual interactions is the right to refuse
+participation in sexual acts at any time. It is the right not to be
+exposed to the actions of other people that one does not want to
+participate in or be subjected to (ibid). It is also the right of
+defence -- if someone coerces you into engaging in a sexual act that you
+do not want, you are allowed to defend yourself. The negative freedom to
+sexual autonomy also imposes on others a duty not to interfere; it
+limits their positive liberties. It is only through consent that the
+duty not to interfere can be removed, it is consent that makes
+interferences, i.e. the sexual interactions, permissible and legal
+(Scheidegger 2021, 771).
+
+The right to sexual self-determination, especially for women, must also
+be understood in a historical context. Originally, the criminal law on
+sexual offences was established to safeguard the authority of fathers
+and husbands over women\textquotesingle s bodies. Women were their
+property, and in cases of rape, it was possible that the woman would get
+accused of adultery and thus harm the honour of her husband (Lameyre
+2000, 92--93). Rape within a marriage was largely inconceivable as the
+husband had full sexual rights over his wife. To free herself from this
+accusation and to free her father or husband from dishonour, the woman
+had to prove an element of coercion, which demonstrated that she had
+shown sufficient resistance to the aggressor. Even though this notion is
+highly outdated now, the requirement of coercion as a central element of
+rape law is now being removed in many jurisdictions, albeit only after a
+prolonged struggle and resistance from a patriarchal society
+(Scheidegger 2021, 770). But there is no denying that there has been a
+significant change in the attitudes towards rape law almost on a global
+scale in the last twenty or thirty years. Indeed, the focus of rape law
+has shifted from coercion as the main characteristic of rape to a
+consent-based model, that defines rape as sex against one's
+will.\footnote{This is the case in most European countries (see, e.g.,
+  `Europe: Spain to Become Tenth Country in Europe to Define Rape as Sex
+  without Consent' 2020)} This already includes the idea of sexual
+autonomy; the right to choose the sex you want. Thus, as Tatjana Hörnle
+puts it, disregarding the right to sexual autonomy is punishable as such
+(Hörnle 2016, 862). What is punishable is the offence against sexual
+autonomy. Rape law has thus moved away from a moralizing perspective
+that dictated with who and how sex was permissible or not, to a focus on
+sexual autonomy, emphasizing the individual's right to shape their own
+sexual interactions.
+
+Following the notion of positive freedom in relation to sexual offences,
+there has been a clear tendency to decriminalize certain sexual acts.
+For example, the abolition of criminal offences of adultery, sodomy,
+homosexuality and incest (Scheidegger 2021, 770). One main idea is that
+the state has no right to determine or have control over the way the
+individual wants to have sex. This has also led to a demoralization and
+destigmatisation of certain sexual relations. Thus, positive freedom has
+the effect - at least in tendency - that we criminalize less. Being able
+to act according to your own wishes and needs primarily means that the
+state should not interfere in this intimate area and should be tolerant
+and non-paternalistic. Autonomy in the sense of positive freedom is the
+epitome of a modern law on sexual offences: de-moralization of sexual
+criminal law, getting away from religious commandments and hence
+decriminalization. This is also reflected in how the law is named: What
+in some legal orders was termed ``offences against morality'' became
+``offences against sexual autonomy'' (Hörnle 2016, 851). Since today, it
+is sex against the will or sex without consent that is punishable,
+which, at its core, embodies the idea that sexual autonomy is worthy of
+protection and should be able to shape sexual interactions in a
+meaningful way, it seems as if everything is settled. However, there are
+still cases of impairment of sexual autonomy that are not clearly
+covered by the reformed law. One complex set of these cases can be
+collected under the heading of `unjust sex'.
+
+\section*{Unjust Sex}
+Ann J. Cahill discusses the differences between `unjust sex' (as termed
+by Nicola Gavey, 2005) and rape and introduces the idea that the
+victim's agency is crucial in determining whether an act is rape or
+not.\footnote{Cahill limits her discussion on hegemonic heterosex, and
+  the following descriptions are of a very gendered nature that
+  stereotypically portray heterosexual cis-women as the victims and
+  heterosexual cis-men as the offenders (Cahill 2016, 747).} There are
+some heterosexual interactions that occupy a `gray area', where sex
+occurs under pressure (albeit non-violently) or with passive
+acquiescence, making them ethically problematic but distinct from rape.
+Examples include ``situations in which a man applied pressure that fell
+short of actual or threatened physical force, but which the woman felt
+unable to resist'' (Gavey 2005, 136). The elements of ``letting sex
+happen'', or ``going along with sex'' shape the interactions of unjust
+sex that fall into this `gray area' (ibid). These sexual interactions,
+though not overtly violent, are nonetheless not desired and thus
+possibly non-consensual. What permeates the descriptions is the notion
+of giving in and conceding to the actions. The sexual interactions are
+accompanied by a sense of moral wrongness which cannot simply be equated
+with rape. While there are common elements between sexual assault and
+certain forms of unjust sex, such as coerced and pressured sex, they
+differ significantly in terms of the role and efficacy of the victim's
+sexual agency. In instances of unjust sex, the victim's sexual agency is
+acknowledged but constrained or exploited, serving as a superficial
+validation of the interaction. Feeling like there is no way of refusing
+sex and `having to go along with it' demonstrates a constraint on the
+ability to act freely. In sexual assault, agency is overridden or
+nullified (Cahill 2016, 758). The victim's right to not engage in the
+sexual interaction or the right not to be interfered with is revoked and
+constitutes a harm to sexual autonomy. It is important to acknowledge
+that women have sexual agency and that denying them this agency
+constitutes serious harm.
+
+What Cahill highlights is the fact that what makes rape problematic is
+the nullification of the victim's sexual agency. Since sexual autonomy
+and agency are intrinsically connected, a harm to agency is also a harm
+to autonomy (Cahill 2016, 757; 2016, 760). Autonomy relies on the
+ability to make meaningful choices, and when agency is constrained, the
+capacity for autonomous decision-making is diminished or abolished. The
+nullification of the victim's sexual agency can be seen as giving enough
+grounds for criminalization as it amounts to reprehensible sex against
+the will, to sex that prevents the individual from acting autonomously,
+i.e. to non-consensual acts. As undermining sexual agency is harmful in
+at least this very important sense, unjust sex should be criminalized as
+it is contrary to sexual autonomy.
+
+Cahill also points out, that sexual agency is to be understood in
+relation to others (Cahill 2016, 757). This means that agency is not
+exercised in isolation but is shaped by and interacts with the agency of
+others. The agency is limited by the duty of non-interference imposed by
+the positive right of others to sexual autonomy. This is similar to how
+autonomy is described, and that the relational aspect of sexual
+interactions is limited by the autonomy of others.
+
+\subsection*{False affirmations of autonomy}
+There are cases where autonomy can be weaponized: in unjust sex, the
+appearance of autonomy -- where a woman's consent or acquiescence is
+sought -- can paradoxically undermine her autonomy. This occurs when her
+`choice' is used to validate an interaction that does not genuinely
+respect or expand her sexual agency. In such instances, consent becomes
+a tool for masking manipulation or coercion rather than an expression of
+free will. It is fictitious and non-valid consent, but one that is
+difficult to detect because it hides behind the façade of proper
+consent. There can be instances of manipulation or non-violent coercion
+that lead to this kind of ostensible consent. It can also be the case
+that preexisting power dynamics influence the `choice making' but in a
+way that does not further the victim's sexual agency. When a person's
+consent is shaped by factors like economic dependence, social pressure
+or emotional vulnerability, the resulting action may appear consensual
+but fail to respect or affirm their autonomy. Rae Langton describes how
+affirming someone's autonomy when it is actually constrained can mask
+the underlying coercion and power imbalance (2009, 14). This
+recognition of false or apparent autonomy reinforces systemic
+injustices.
+
+Indeed, traditional gender roles and expectations often normalize
+behaviours that subtly undermine sexual agency framing them as
+acceptable aspects of romantic love. Consider the idea of the male
+pursuer, having to woo the woman and interpret her refusal or denial as
+teasing him, not understanding that she is setting boundaries and
+asserting sexual autonomy. Or the expectation that women have to
+prioritize male pleasure and give in to pleas in order to avoid
+conflict; these norms all lead to a normalization of violation of sexual
+agency. Without recognizing and addressing the limitations on sexual
+agency in everyday sexual interactions, we cannot adequately confront
+the culture that allows the undermining of sexual agency and autonomy to
+perpetuate.
+
+\section*{Synthesis}
+Combining the notions of both sexual autonomy and unjust sex, this is
+what results: the legal asset which criminal law on sexual offences aims
+to protect is sexual autonomy. Sexual autonomy is the right to engage in
+consensual sexual interactions that one desires without interfering with
+the negative freedom of the sexual partners not to be coerced into acts
+that they do not want to participate in. In instances of rape, sexual
+autonomy is nullified, taking away the right to sexual autonomy of the
+victim. The violation is complete and leaves no room for the exercise of
+autonomy. By contrast, in cases of unjust sex, agency is acknowledged
+but deliberately exploited, limiting the victim in their ability to
+assert their sexual autonomy. Although this may not nullify autonomy in
+the same way as rape, it imposes significant restrictions on the
+victim's capacity for self-determination, thereby causing harm to their
+sexual autonomy. The harm caused by unjust sex is not merely moral but
+involves a legal and social dimension that requires recognition and
+intervention. Since sexual autonomy is what the law aims to protect, I
+conclude that there are compelling reasons to criminalize unjust sex.
+
+\section*{Concerns}
+This line of argument raises several significant concerns, which I will
+address in this section.
+
+Firstly, the tension between the liberal idea of decriminalization and
+the lived reality of many women still experiencing cases of `unjust sex'
+that are not captured by existing rape law can lead to confusion.
+Stricter penalties for offences can provoke defensive reflexes in
+liberal-minded people. The fear is that increased criminalization might
+lead to overreach or moral paternalism. The deeply intimate nature of
+sexuality often leads to an intuitive resistance against state
+interference, as it is seen as an area where the state should not
+interfere, and the suspicion of moralization is high. Excessive state
+control over private lives raises issues about how much state
+interference is allowed and can be tolerable when it comes to regulating
+intimate relationships.
+
+This concern is understandable, particularly given the historical
+trajectory of law on sexual offences. Liberal thought has long
+emphasized decriminalization as a means of protecting individual
+freedoms, ensuring that the state does not impose moral judgments on
+private sexual behaviour. However, the expansion of the law to include
+unjust sex is not a step towards moralizing sexual interactions but a
+necessary measure to uphold sexual autonomy. The criminalization of
+unjust sex does not aim to regulate private morality but to safeguard
+individuals' ability to make autonomous choices in sexual interactions.
+The crucial distinction lies in the law's objective: it is not concerned
+with evaluating the moral worth of particular sexual acts but with
+preventing coercive and exploitative behaviour that undermines sexual
+authority. Unlike past laws that sought to impose moral norms -- such as
+those criminalizing homosexuality or adultery -- the proposed reform is
+rooted in the principle that individuals should be able to make free
+choices about their sexual interactions. Furthermore, the argument for
+criminalizing unjust sex does not contradict the liberal commitment to
+limiting state interference in private life. On the contrary, it aligns
+with it. Liberalism is fundamentally concerned with ensuring that
+individuals can exercise autonomy without coercion or undue influence.
+The same rationale that justifies criminalizing rape -- protecting
+individuals from violations of their autonomy -- also supports
+addressing unjust sex, as both involve the imposition of unwanted sexual
+interactions. By criminalizing unjust sex, the law does not overreach
+but instead ensures that sexual autonomy is meaningfully protected,
+reinforcing the very principle of individual's self-determination that
+liberalism upholds. A progressive, liberal law on sexual offences does
+not necessarily rely on decriminalization.
+
+A further concern is the potential blurring of boundaries between unjust
+sex and rape. Nora Scheidegger highlights the importance to reserve the
+term ``rape'' for the most egregious violations of sexual autonomy
+(Scheidegger 2021, 783). Conflating the two could dilute the power and
+significance of the term `rape'. Rape is considered one of the most
+reprehensible violations of sexual autonomy and widening the scope of
+its definition might weaken its impact. This is similar to the way
+psychiatric terms like `depression' are sometimes used casually even
+when they don't apply, which diminishes their power and seriousness. The
+concern is that labelling too many behaviours as rape might trivialize
+its profound harm and undermine public and legal recognition of its
+severity.
+
+In response to this objection, one could reply that the argument was not
+aimed at putting unjust sex into the same category as rape. I have
+argued that unjust sex as such should be criminalized, and not that
+because unjust sex equals rape, it should be criminalized. As a distinct
+category of sexual offences, unjust sex harms sexual autonomy and should
+be criminalized on the grounds of exactly this. Thus, it is more
+effective to create distinct legal categories to address non-violent
+abuses effectively.
+
+Tied to the idea of creating new legal categories is the obvious concern
+of how the case of unjust sex can be proved in a legal setting. Unjust
+sex occurs in a more ambiguous space where coercion is subtle, and
+consent may appear to be given, even if it is influenced by pressure or
+manipulation. This raises significant questions on how to go about
+evidence and proof, which are already challenging in sexual offence
+cases due to their reliance on conflicting testimonies -- often leading
+to legal deadlock in `he said, she said' scenarios. How can the law
+reliably distinguish between an individual who truly consents and one
+who `goes along with' sex?
+
+A potential response would be to carefully define unjust sex in legal
+terms, ensuring that it is distinguished both from consensual sex and
+legally recognized forms of sexual assault. This would involve
+distinguishing criteria for recognizing coercion beyond physical force,
+such as establishing a threshold for undue pressure, manipulation or
+abuse of power. A clear formulation of how the criminalization of unjust
+sex should be approached, however, is an undertaking that pushes the
+limits of this essay.
+
+\section*{Conclusion}
+In conclusion, I have argued that unjust sex -- instances of sexual
+interactions that are characterized by exploitation of sexual agency --
+should be criminalized on the grounds that they harm sexual autonomy.
+Sexual autonomy, as a legal and moral principle, underpins the ability
+to make meaningful and voluntary choices when it comes to sexual
+interactions. It is characterized by the positive freedom to choose
+which sexual interactions to engage in and the negative freedom to
+refuse to participate in sexual interactions. Unjust sex, by
+manipulating or undermining agency, violates this principle, reducing
+the individual's capacity for self-determination. Cases that allegedly
+fall into the `gray area' have to be painted in colour and acknowledged
+as acts that undermine sexual agency in a way that threatens and harms
+sexual autonomy. Not only do these instances reinforce behaviour that
+perpetuates systemic power imbalances, but they also contribute to a
+culture that normalizes the undermining of sexual agency. The
+criminalization of unjust sex is not an overreach but rather a necessary
+measure to make sure that sexual autonomy is protected. The effort is
+aimed at defending autonomy and not at imposing moralistic control. An
+obvious question arises from this analysis: how do we go about
+criminalization? This, however, is a topic best reserved for a separate
+discussion.
+
+% restore title format like nothing ever happened
+\let\section\sectionDefault
+\let\titleformat\titleformatDefault
+
+\refsection
+
+\begin{hangparas}{\hangingindent}{1}
+Cahill, Ann J. 2016. `Unjust Sex vs. Rape'. \emph{Hypatia} 31 (4):
+746--61.
+
+`Europe: Spain to Become Tenth Country in Europe to Define Rape as Sex
+without Consent'. 2020. 3 March 2020.
+https://www.amnesty.org/en/latest/news/2020/03/europe-spain-yes-means-yes/.
+
+Gavey, Nicola. 2005. \emph{Just Sex? The Cultural Scaffolding of Rape}.
+1. publ. Women and Psychology. London: Routledge.
+
+Hörnle, Tatjana. 2016. `Sexuelle Selbstbestimmung: Bedeutung,
+Voraussetzungen Und Kriminalpolitische Forderungen'. \emph{Zeitschrift
+Für Die Gesamte Strafrechtswissenschaft} 127 (4). \newline
+https://doi.org/10.1515/zstw-2015-0040.
+
+Lameyre, Xavier. 2000. \emph{La criminalité sexuelle}. Dominos 206.
+Paris: Flammarion.
+
+Langton, Rae. 2009. \emph{Sexual Solipsism: Philosophical Essays on
+Pornography and Objectification}. Oxford\,; New York: Oxford University
+Press.
+
+Scheidegger, Nora. 2021. `Balancing Sexual Autonomy, Responsibility, and
+the Right to Privacy: Principles for Criminalizing Sex by Deception'.
+\emph{German Law Journal} 22 (5): 769--83. \newline
+https://doi.org/10.1017/glj.2021.41.
+
+Schulhofer, Stephen J. 2000. \emph{Unwanted Sex: The Culture of
+Intimidation and the Failure of the Law}. Cambridge, Massachusetts
+London: Harvard University Press.
+\end{hangparas}
+
+%%% Local Variables:
+%%% mode: LaTeX
+%%% TeX-master: t
+%%% TeX-master: "../main"
+%%% End: