Criminalization Tensions: Empirical Desert, Changing Norms, and Rape Reform

Document Type

Book Chapter

Publication Date

2011

Abstract

This short Article is part of the organizers’ larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is instrumentalist, as well as deontological, value in having criminalization decisions that generally track the community’s judgments about what is sufficiently condemnable to be criminal, but that there are also good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones with the greatest stake in normally tracking community views, in order to avoid community perceptions of the criminal law as regularly or intentionally doing injustice. By building the criminal law’s moral credibility, the law can earn “credibility chips” that the social reformer then has available to “spend” when the criminal law is needed to help change existing norms. The strategic dilemmas of a rape reformer are used as a case study to demonstrate the complexities of the calculations.

Keywords

Criminalization, community views and judgments, law reform, modification of social norms, sexual offenses, intuitions of justice, moral credibility, criminal law, justifying deviations from desert, social reform

Publication Title

The Structures of Criminal Law

Publication Citation

In The Structures of Criminal Law (Antony Duff et al. eds, Oxford 2011)

Link to Full Text

Link to SSRN

Available at Biddle Library

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