Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability

Journal article

In their well-known paper, John Gardner and Stephen Shute (2000) propose a pure case of rape, in which a woman is raped while unconscious and the rape, for a variety of stipulated reasons, never comes to light. This makes the pure case a harmless case of rape, or so they argue. In this paper I show that their argument hinges on an outdated conception of trauma, one which conflates evaluative responses that arise in the aftermath of rape with the non-deliberative somatic responses of a central nervous system to a threatening event. In the first part of this paper, I elaborate this objection by drawing on the neurobiological model of trauma. This gives me an opportunity to illustrate the different ways that rape harms its victims, including the central way, what I call ‘threat-circuitry harm.’ This discussion of trauma invites us to rethink the wrong of rape, and sets the groundwork for my argument, in the second part of the paper, that the wrong of rape consists in its central harm

Authors: Greasley, K

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Springer
• Journal: Criminal Law and Philosophy
• Volume: 15
• Issue: 2
• Pages: 159-179
• Publication date: 2020-03-06
• DOI: 10.1007/s11572-020-09529-6
• EISSN: 1871-9805
• ISSN: 1871-9791
• Language: English
• Keywords: Element (criminal law); Liability; Philosophy of law; Criminology; Psychology; Culpability; Scholarship; Comparative law; Criminal law; Wrongdoing; Law; Political science