Legal Philosophy

by rjp218 May 13, 2015

Present and Future Instances of Virtual Rape in Light of Three Categories of Legal Philosophical Theories on Rape

Litska Strikwerda
Philosophy and Technology: 1-20 (2014)

This paper is about the question of whether or not virtual rape should be considered a crime under current law. A virtual rape is the rape of an avatar (a person’s virtual representation) in a virtual world. In the future, possibilities for virtual rape of a person him- or herself will arise in virtual reality environments involving a haptic device or robotics. As the title indicates, I will study both these present and future instances of virtual rape in light of three categories of legal philosophical theories on rape in order to answer the aforementioned question. I will argue that a virtual rape in a future virtual reality environment involving a haptic device or robotics should in principle count as the crime of rape; for it corresponds to rape as it is viewed under the liberal theories that currently dominate the law. A surprising finding will be that a virtual rape in a virtual world re-actualizes the conservative view of rape that used to dominate the law in the Middle Ages and resembles rape as it is viewed under the feminist theories that criticize current law. Virtual rape in a virtual world cannot count as rape under current law; however, and at the end of this paper, I will suggest qualifying it as sexual harassment instead. Abstract retrieved from philpapers.

Litska Strikwerda (2014). Present and future instances of virtual rape in light of three categories of legal philosophical theories on rape. Philosophy and Technology: 1-20. 

Sexual Consent as Voluntary Agreement: Tales of “Seduction” or Questions of Law?

Lucinda Vandervort
New Criminal Law Review 16 (1): 143-201 (2013)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea-bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. Abstract retrieved from Social Sciences Research Network.

Vandervort, Lucinda (2013). Sexual consent as voluntary agreement: Tales of “seduction” or questions of law? New Criminal Law Review 16 (1): 143-201.

Configuring Consent: Emerging Technologies, Unauthorized Sexual Images and Sexual Assault

Anastasia Powell (2010)
Australian & New Zealand Journal of Criminology 43 (1): 76-90.

Contemporary teens and young adults, often collectively referred to as the .NET generation or the ‘digital generation’, represent the largest proportion of end-users in the information and communication technologies market (Australian Bureau of Statistics [ABS], 2007; Australian Communications and Media Authority [ACMA], 2007, 2008). While there is much written concerning the rise in pornographic and other sexual material via the internet and mobile phones there is comparatively little published work regarding the use of information and communication technologies for the distribution of unauthorised sexual images, more particularly, where a sexual assault has occurred. This article considers the issues raised by the use of information and communication technologies in sexual violence and the distribution of unauthorised sexual images. The implications of this emerging issue are considered in light of existing and potential legislative frameworks. Abstract retrieved from Sage Journals.

Powell, Anastasia (2010). Configuring consent: Emerging technologies, unauthorized sexual images and sexual assault. Australian & New Zealand Journal of Criminology, 43 (1): 76-90.

Addressing Rape Reform in Law and Practice

Susan Caringella
Columbia University Press (2008)

The first comprehensive book on rape since Susan Brownmiller's Against Our Will and Susan Estrich's Real Rape, this volume probes every aspect of rape law and the discrepancies between ideal law (on the books) and real law (in action). Susan Caringella canvasses the success and failure of reform in the United States, as well as Australia, Britain, Canada, and New Zealand, and assesses alternative perspectives on rape reform, making use of theoretical models, court cases and statistical data. She uniquely delineates a creative model for change while addressing the discretion that undermines efforts at change. This includes charging the accused and plea bargaining, confronting a lack of transparency and accountability in implementing law, and acquiring funding for such changes. Abstract retrieved from amazon.

Caringella, Susan (2008). Addressing rape reform in law and practice. New York: Columbia University Press. 

Telling Tales: Legal Stories About Violence Against Women

Regina Greycar
Cardozo Studies in Law and Literature, 8 (2): 297-315 (1996)

One of the most striking features of the latter part of the last century was the widespread feminist activism in the USA, Canada, Australia, and many other countries directed against violence against women. Feminist law reform campaigns targeted rape, domestic violence, sexual harassment, and child sexual abuse. Yet despite the broad attention to these issues, there is a continuing absence of attention in legal discourses to women's stories about the violence in their lives. In particular, outside the area of the criminal law, it is rare to find courts discussing violence, yet not uncommon to discover the centrality of violence to a legal problem, whether it be in equity, or tort, or family law. One theoretical response to this concern, and to other feminist concerns about the stories told by women in law, has been the developing field of legal storytelling. This article discusses legal storytelling and suggests that while it is an important response, it is of itself an inadequate response. I argue that while it is essential to hear alternative legal stories, in particular, those of the powerless, this approach is itself constrained by the legal categories within which we understand legal problems. Since legal categories shape legal problems, and, in the case of violence against women, help to obscure that reality of many women's lives, it is essential to pay attention to the role of legal categories in perpetuating the law's indifference to, or its occasional tacit complicity in, violence against women. Abstract retrieved from philpapers.

Greycar, Regina (1996). Telling tales: Legal stories about violence against women. Cardozo Studies in Law and Literature, 8 (2): 297-315.

Why When She Says No She Doesn't Mean Maybe and Doesn't Mean Yes: A Critical Reconstruction of Consent, Sex, and The Law

Joan McGregor
Legal Theory, 2 (3): 175-208 (1996)

A little more than two years ago, a Texas woman, faced with a knife-wielding intruder demanding sex from her, tried to talk her attacker into wearing a condom to protect herself against the possibility of contracting AIDS. A grand jury refused to indict the man because jurors believed that the woman's act of self-protection implied that she had consented to sex. Abstract retrieved from Cambridge Journals.

McGregor, Joan (1996). Why when she says no she doesn't mean maybe and doesn't mean yes: A critical reconstruction of consent, sex, and the law. Legal Theory, 2 (3): 175-208.

The Laws of War and Women’s Human Rights

Liz Philipose
Hypatia, 11 (4): 46-62 (1996) 

This is a review of historical developments in international criminal law leading up to the inclusion of rape as a "crime against humanity" in the current war crimes tribunal for the ex-Yugoslavia. In addition to the need to understand the specificity of events and their impact on women, the laws of war must also be understood in their specificity and the ways in which even the humanitarian provisions of those laws privilege military needs. Abstract retrieved from philpapers.

Philipose, Liz (1996). The laws of war and women’s human rights. Hypatia, 11 (4): 46-62.

Feminist Justice and the Pursuit of Peace

James P. Sterba
Hypatia, 9 (2): 173-187 (1994)

I argue that the achievement of feminist justice is centrally related to the pursuit of peace, so that those who oppose violence in international arenas must, in consistency, oppose violence against women as well. This requires putting an end to the overt violence against women that takes the distinctive form of rape, battering, sexual harassment, and sexual abuse, and to the structural violence that takes the form of inequalities suffered by women in their families and in the economic arena. Abstract retrieved from philpapers.

Sterba, James P. (1994). Feminist justice and the pursuit of peace. Hypatia, 9 (2): 173-187.

Date Rape: A Feminist Analysis

Lois Pineau
Law and Philosophy, 8 (2): 217-243 (1989)

This paper shows how the mythology surrounding rape enters into a criterion of reasonableness which operates through the legal system to make women vulnerable to unscrupulous victimization. It explores the possibility for changes in legal procedures and presumptions that would better serve women's interests and leave them less vulnerable to sexual violence. This requires that we reformulate the criterion of consent in terms of what is reasonable from a woman's point of view. Abstract retrieved from philpapers.

Pineau, Lois (1989). Date rape: A feminist analysis. Law and Philosophy, 8 (2): 217-243. 

Mistake of Law and Sexual Assault: Consent and Mens Rea

Lucinda Vandervort
Canadian Journal of Women and the Law 2 (2): 233-309 (1987-1988)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. Abstract retrieved from philpapers.

Vandervort, Lucinda (1987-1988). Mistake of law and sexual assault: Consent and mens rea. Canadian Journal of Women and the Law 2 (2): 233-309.