Justifying and Excusing Sex

Abstract

This article aligns two complementary claims: that sexual penetration (itself) should be considered a wrong and that consent requires express words and conduct that manifest a person’s willingness or acquiescence towards the specific act. If sexual penetration is a wrong, it will only be justified if there are reasons that permit the action (‘guiding reasons’) and if these were the ones that the defendant acted on (‘explanatory reasons’). A person’s internal attitude of willingness or acquiescence (his or her ‘attitudinal consent’) towards the specific act can provide the necessary guiding reasons to justify the wrong. However, words and conduct that manifest or express this internal attitude (‘expressive consent’) are also needed in order to provide the applicable explanatory reasons to justify the wrong. Alternatively, expressive consent can excuse the wrong by justifying the defendant’s mistake as to the applicable guiding reasons. Without the requirement of expressive consent, the criminal law is unable to capture the culpability of defendants whose deliberation over the use of force on another person (to achieve penetration) did not include the other person’s expression of willingness to engage in a penetrative sexual act.