From f9118013e52cb0384e006681ce25a367b6fc0d51 Mon Sep 17 00:00:00 2001 From: Jacob Walchuk Date: Tue, 1 Jul 2025 16:34:51 +0100 Subject: Paper 2 done except for author info --- main.tex | 5 + papers/2.tex | 401 +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 2 files changed, 406 insertions(+) create mode 100644 papers/2.tex diff --git a/main.tex b/main.tex index ee85731..38a4a17 100644 --- a/main.tex +++ b/main.tex @@ -67,6 +67,10 @@ \titlespacing*{\chapter}{0pt}{-50pt}{40pt} \titleformat{\section}{\large\bfseries\raggedright}{{\sf\thesection}}{2em}{} \titleformat{\subsection}{\bfseries}{{\sf\thesubsection}}{1.5em}{} +% Save this as default, so it can be revoked and restored +\let\sectionDefault\section +\let\titleformatDefault\titleformat + % Header style \pagestyle{fancy} \renewcommand{\chaptermark}[1]{% @@ -121,6 +125,7 @@ \mainmatter \include{papers/1} +\include{papers/2} \backmatter \include{90-contributors} 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: -- cgit v1.2.3