Sex and Self-Ownership: Essays on Consent and the Criminal Law

Since the criminal law acquits a person who mistakenly believed that another person consented to the sex that they forced upon them: ’rape is not prohibited; it is regulated’ (to borrow Mackinnon’s phrase). This book is concerned with the legal category of ’the exculpatory mistaken belief in consent’, why this category ought to be narrowed, and how it can be narrowed without departing from criminal law’s retributive morality and principles of criminalisation.

The book calls for three reforms of the criminal law. First, sex itself should be a pro tanto wrong, where consent can justify the wrong or a mistaken belief in consent can excuse the wrong. Second, consent ought to be defined in terms of the objective words and overt actions that express a subjective attitude. Third, whether the defendant had an exculpatory mistaken belief ought to be determined solely by having regard to the steps the defendant had taken to ascertain whether the complainant consented.

These calls are predicated on a range of philosophical inquiries, including explanations of: how all sex instrumentalizes and objectifies another person; how consent performs of trilogy of functions by representing a choice, expressing a person’s interests, and by empowering a person to change their normative relationship with another person; how a person can be blameworthy for acting against moral reasons even when they were unaware those reasons applied to their moral situation; and how we can have a justified belief in the mental state of another person.

Jesse Wall, Associate Professor, Faculty of Law, University of Auckland

Jesse Wall is an Associate Professor of Law at the University of Auckland. He has previously held academic positions at Merton College, University of Oxford, and the University of Otago. Jesse completed his postgraduate qualifications at Pembroke College, Oxford, where he was studying as a Rhodes Scholar, completing the BCL, and then writing his doctoral thesis under the supervision of Professor Jonathan Herring. As an undergraduate at the University of Otago, Jesse studied toward a Bachelor of Laws and a Bachelor of Arts, majoring in Philosophy. Sex and Self-Ownership is Jesse’s second monograph, after Being and Owning (Oxford University Press, 2015).