Stuart P. Green's "Criminalizing Sex"

Stuart P. Green is a Distinguished Professor of Law at Rutgers University.

He applied the “Page 99 Test” to his new book, Criminalizing Sex: A Unified Liberal Theory, and reported the following:

Page 99 of Criminalizing Sex considers the question, when should it be a crime to induce another into sex by means of deceit? For example, should it be a crime if Daniel obtains “consent” to sex with Vanessa by falsely claiming that he is single and interested in a long-term relationship? What if he deceives her into thinking that he is free of sexually transmitted diseases, or if he misrepresents himself to her as a cisgender male? Should it be a crime if Daniel obtains sex from Vanessa by falsely claiming to be a powerful movie producer who will make her a star? What if he obtains consent to sex by impersonating Vanessa’s partner, Jim?

Most readers will intuit that some of these acts should be criminalized, while others should not. But how do we explain and assess such intuitions, and how do we ensure that our responses are conceptually coherent, consistent, and principled? Although rape by deceit is just one of many offenses considered in the book, analogous questions recur in almost every chapter. So, in that sense, the Page 99 test works quite well for Criminalizing Sex, which seeks to develop a theoretically rigorous approach to such questions.

The sexual offenses considered in the book are divided into three broad categories. The first category consists of offenses that make it a crime to engage in nonconsensual sex of one sort or another. Of central concern here are rape and sexual assault in a variety of forms (including, in addition to rape by deception, rape by nonviolent coercion, statutory rape, and rape resulting from lack of affirmative consent), as well as sexual harassment, voyeurism, and indecent exposure. The second category consists of putatively consensual offenses such as adult incest, prostitution, and sadomasochistic assault. And the third category contains offenses that I call aconsensual, such as bestiality and necrophilia.

Most work on the sexual offenses has tended to treat these categories as if they were conceptually distinct. Criminalizing Sex shows how they are very much interrelated. Thus, while rape by deceit may not seem to have much in common with, say, voyeurism, and voyeurism may not seem to have much in common with, say, necrophilia, in fact there is a common conceptual thread that informs, or ought to inform, their criminalization.

Visit Stuart Green's website.

--Marshal Zeringue