Sexual Offences and General Reasons Not to Have Sex

Abstract

This article contends that there are general (but defeasible) reasons not to engage in penetrative sex. If there are such reasons, then we are able to refute a predominant justification for the current drafting of the crimes of rape and assault by penetration. The implication is that for such crimes the provision of consent ought to be available as a justificatory defence rather than the absence of consent being an element of the offence. This argument is developed out of three propositions that are substantiated in this article: (i) that there is a conceptual distinction between the elements of an offence and a justificatory defence that is based upon general reasons against performing an act and specified reasons in favour of performing the act; (ii) that a general feature of penetrative sex is the application of force to a person’s vagina or anus; and (iii) that the principle of (reflexive) self-ownership is able to explain the wrongness of nonconsensual penetrative sex. Given these three propositions, I will suggest that there are general (but defeasible) reasons not to engage in penetrative sex as the application of force that is required to achieve penetration is an infringement of a person’s rights of self-ownership. This analysis reveals that proponents of the view that there are no general reasons not to engage in penetrative sex ultimately presume that a person exercises their rights of control over their body in favour of sexual activity. The purpose of this article is to isolate, and then displace, this presumption.