Rethinking the criminal law’s response to sexual penetration: On theory and context

In this chapter, we will explain and defend our approach to thinking about the criminal law’s response to sexual penetration. This will involve us making the following four claims:

1 Engaging in sexual penetration calls for justification. 2 The penetrated person’s consent does not fully justify sexual penetration. 3 The penetrated person’s consent plus other reasons (i.e. reasons in favour

of engaging in sexual penetration) can justify sexual penetration. 4 In any given social context, if sexual penetrators are typically justified in

engaging in sexual penetration, then sexual penetration per se should not be prohibited in that society; however, if sexual penetration typically is not justified in a given social context, then the penetration itself becomes a proper target for prohibition.