Stuart P. Green

Lies, Rape, and Statutory Rape

When an offender lies or uses other forms of deception to induce an adult victim into sex, the law normally does not treat that as rape, even when the victim would not have engaged in the act absent the deception. But when the offender himself is deceived into having sex with an underage victim, that is treated as statutory rape, even if, once again, the deception was a but-for cause of the sex. To put it another way, in the case of rape, the person who does the lying escapes liability, while in the case of statutory rape the person who is lied to is punished. At first glance, this seems reversed: why should lie-perpetrators go free while lie-victims are punished? Can such a regime be justified?I will argue that the best way to understand the function of both rape and statutory rape is as part of a larger body of sexual offense laws. Under this approach, sexual autonomy is not a single, monolithic right to sexual self-determination, as some have described it, but, rather, a complex, multifarious “bundle” of rights to engage in, or refrain from, various forms of sexual activity and sex-related conduct; and different sexual offenses should be understood as protecting different “sticks” within the bundle. Rape, under my approach, would protect the basic right to decide whether to have penetrative sex, and with whom. Only misrepresentations regarding the fact of sexual penetration or the identity of one’s partner would be sufficient to invalidate consent for purposes of rape law. Misrepresentations regarding other matters, such as the fact that one’s partner is not using contraception, has a sexually-transmitted disease, or is transgendered, should be dealt with, if at all, by more specialized, lesser offenses within the suite of sexual offenses.Statutory rape should also be viewed within the broader scope of the sexual offenses. It is often said that a child’s lack of consent should be “presumed” whenever the child has sex with an adult. But if children were truly incapable of consenting to sex, it would make no sense to treat the forcible rape of a child as a more serious offense. We are thus presented with something of a paradox: when a child is subject to genuinely unwanted sex, the presumption is that she is capable of consenting to sex; but when she is involved in wanted sex, the law presumes that she is incapable of consenting. To avoid this paradox, we should abandon the concept of statutory rape as involving a presumption of nonconsent, and instead simply view it as analogous to other sexual offenses that are intended to prevent the exploitation of potentially vulnerable members of society. Under this approach, we would understand statutory rape law as protecting only those children who are too young or inexperienced or immature to make the decision to have sex. In cases where a precocious teen misrepresents her age to an adult, the rationale for imposing liability is lacking.

Relationships Between Indices of Retinal Thinning as Revealed by Spectral Domain Optical Coherence Tomography, and Visual and Cognitive Impairments in Schizophrenia

Schizophrenia is a neuropsychiatric disorder in which visual processing abnormalities are common. An unanswered question in this field is the extent to which some of these functional impairments (e.g., contrast sensitivity) may be due to altered retinal structure and function. This question has gained in importance with two recent studies showing retinal nerve fiber layer (RNFL) thinning in schizophrenia, as revealed by spectral domain optical coherence tomography (SD-OCT). OCT is a noncontact imaging technology that can image retinal structure (including thickness) in vivo with a resolution of 10 microns or less using optical backscattering of light. It has been used to document RNFL thinning in neuropsychiatric disorders such as multiple sclerosis and Parkinsons disease. A second unanswered question in the schizophrenia literature is whether retinal abnormalities can serve as markers of global brain function. Because the retina and optic nerve are outgrowths of brain tissue, they are considered part of the central nervous system, and some past OCT studies in other neuropsychiatric disorders (e.g., multiple sclerosis, Parkinsons disease) indicate that retinal tissue loss parallels cortical degeneration and cognitive decline. This has not yet been investigated in schizophrenia, however, although progressive gray and white matter loss, and cognitive decline, have been repeatedly documented, especially early in the illness. To make progress on the above questions, we are generating SD-OCT data on RNFL and macular thickness, and determining relationships with visual acuity, contrast sensitivity, perceptual organization, and global cognitive capacity (expected sample sizes of 20 patients and controls each before VSS 2015). To date, 6 of 7 schizophrenia patients have demonstrated significant RNFL and/or macular thinning compared to control norms. Moreover, extent of thinning is significantly related to illness chronicity, controlling for age, and to poorer visual acuity. Relationships between OCT findings and visual and cognitive task performance will be reported. Meeting abstract presented at VSS 2015.

The Conceptual Utility of Malum Prohibitum

For retributivists, who believe that criminal sanctions should be used to punish only conduct that is blameworthy, the so-called mala prohibita offenses have always been a source of concern: When the conduct being criminalized is wrongful prior to and independent of its being illegal - as it is with presumptive mala in se offenses like murder and rape - the path to blameworthiness is relatively clear. But when the wrongfulness of the conduct depends on the very fact of its being illegal - as is said to be the case with presumptive mala prohibita offenses like fishing without a license and buying drugs without a prescription - the argument in favor of criminalization becomes more difficult to sustain. Unless one believes that law-breaking as such is morally wrongful, criminal penalties would seem hard to justify. That, in any event, is the standard liberal, retributivist view. As I shall argue, however, things are considerably more complicated than this account would suggest. No offense, at least in the real world, is wholly malum in se or wholly malum prohibitum. Rather, the concepts of malum in se and malum prohibitum should be understood as contrasting, scalar qualities that all criminal offenses, to one degree or another, possess. Under such a conception, an offense could be, say, 80 percent malum in se and 20 percent malum prohibitum, or 20 percent malum in se and 80 percent malum prohibitum. Thinking about malum in se and malum prohibitum in this way can help us make a more precise assessment of the moral content of criminal offenses, taking account of the various ways in which law and legal institutions inform their moral content, the reasons people obey such laws, and what it means to “obey” the law in the first place.

Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation

In the middle of the 20th century, criminal law reformers helped pass laws that consolidated previously distinct common-law offenses such as larceny, embezzlement, false pretenses, extortion, blackmail, and receiving stolen property into a unified offense of theft, imposing uniform punishments for a diversity of methods of stealing and a diversity of types of property that could be stolen. The result was a “consolidated” scheme of theft, with a single, broad definition of property (typically, “anything of value”) and a single scheme of grading (based, roughly, on the value of the thing stolen). In this study, participants were given two sets of scenarios - one involving variations in the means by which a theft was committed, the other involving variations in the type of property stolen—and asked to rate these thefts in terms of blameworthiness and punishment deserved. They drew sharp distinctions across both means of theft and type of property, not adopting a consolidated view. Under the principle of fair labeling - the idea that criminal law offenses should be divided and labeled so as to represent widely felt views about the nature and magnitude of law breaking—such data provide the basis for a significant challenge to modern theft law.

Golden Rule Ethics and the Death of the Criminal Law's Special Part

This brief review of Crime and Culpability: A Theory of Criminal Law, by Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse, focuses on the authors’ proposal that the Special Part of the criminal law, the part that identifies and defines specific offenses, be radically stripped down in a manner that is reminiscent of the Golden Rule of Ethics, which, they say, offers a “clear” and “concise” guide to living ethically. Rather than a long list of specific prohibited forms of conduct (“don’t murder,” “don’t rape,” “don’t commit theft,” and the like), they argue, the criminal law should rely on a single “general rule,” to the effect that “[i]t is criminal for an actor to take an unjustified risk of causing harm to a legally protected interest or to take an unjustified risk that his conduct constitutes prohibited behavior.” Contrary to the authors’ contention, the proper formulation, meaning, and function of Golden Rule of Ethics are anything but “clear.” There are substantial controversies about both the Rules substance (its proper formulation, its meaning, and whether it leads to the right result), and its procedure (e.g. about whether the rule is meant to be relied on by ordinary people on a case-by-case basis in their daily lives; applied only when there exists no more specific rule on point, or where specific rules conflict; or used, primarily by theorists, as a general justifying principle that explains or justifies more specific ethical rules). Relying on a single, general rule of conduct in the criminal law sphere would create similar interpretive and practical uncertainties and difficulties. Rather than doing away with centuries of common law and legislative developments, and essentially starting over, we should instead endeavor to refine the criminal codes we already have so that they are more carefully formulated and more respectful of the harm principle.

Review Essay: Broadening the Scope of Criminal Law Scholarship

Peter Alldridge, Relocating Criminal Law Aldershot, England: Dartmouth Publishing Company, 2000, xxvi + 247 pp