Abstract

In chapter seven of Stuart Green’s magnificent book, Criminalizing Sex, he considers the crime of rape by coercion. In doing so, he takes up several related questions, including how we should distinguish between coercive threats and so-called coercive offers, and how to distinguish between coercive and non-coercive offers. My comments proceed in five steps. In section one, I argue that we should not bother making any distinction between threats and offers, since the two are intertranslatable. In section two, I examine various baselines that might be used to identify coercive proposals (regardless of whether they appear in the form of threats or offers), and I endorse the use of moral baselines over empirical baselines. In section three, I set out some paradigmatic features of coercive proposals, which can help in determining whether a proposal falls below the relevant moral baseline. In section four, I offer reasons for conceptualizing the relevant moral baseline in terms of a breach of duty, rather than a violation of rights. In section five, I briefly address a concern regarding victim-blaming. If my argument succeeds, it both demonstrates that Green may have mischaracterized some cases of coercive sex as non-coercive, and explains how he went astray. While my comments are critical in some respects, I hope they reflect my deep appreciation for Green’s important and insightful contributions to the literature on sexual offenses.

ISSN

2219-7117

Publisher

Oxford University Press

DOI

10.1093/jrls/jlac019

Keywords

coercion, victim-blaming, sexual offences, moral baseline

Disciplines

Criminal Law | Law | Law and Society | Sexuality and the Law

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