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Rutgers Law School Research Paper. In this paper, I argue against the dominant academic view that consent in sexual crimes should be understood and defined as performative. Instead, I advocate the attitudinal model of consent which focuses on the internal feelings of the parties rather than their external expression. My criticisms of the performative model of consent can be briefly summarized as follows. A rape statute based on the performative model is over-inclusive and unjust.

Consider two sexual partners, Adam and Eve. Under the law based on the performative model, Adam would be guilty of rape in any circumstances when Eve wholeheartedly welcomed intimacy with Adam but, for any reason, failed to express her feelings. Adam would be guilty of rape even if he honestly believed that Eve welcomed their intimacy and, in fact, was correct in that belief.

The performative model thus would authorize criminal punishment in the absence of either wrongful harm or culpability. Under the performative standard, Eve may not have sex unless she explicitly sexually encourages her partner. The rape laws based on the performative standard would undercut decades of legal battles fought in the name of privacy, autonomy, and respect for sexual liberty. The performative model is not suited better than attitudinal to target sexual misconduct.

The paper reviews legal outcomes in a of scenarios presenting different interplays of wrongdoing and culpability from the attitudinal and performative perspectives. The comparison of the two models demonstrates the advantages of the attitudinal model over performative in producing a just and proportionate punishment. The paper concludes that attitudinal model of consent in sexual crimes has both doctrinal and practical advantages over the performative.

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Types of Offending eJournal. We use cookies to help provide and enhance our service and tailor content. To learn more, visit Cookie Settings. This was processed by aws-apollo1 in 0. Download This Paper. Open PDF in Browser. Add Paper to My Library. Copy URL. Abstract In this paper, I argue against the dominant academic view that consent in sexual crimes should be understood and defined as performative. Do you have a job opening that you would like to promote on SSRN? Place job opening. Paper statistics.

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Sex and Sensibility: The Meaning of Sexual Consent