What makes sexual exploitation pro-tanto wrongful, even when it is mutually beneficial and non-coercive? This paper argues that the exploiter wrongs the exploitee by breaching two duties: not to take advantage of a person in a situation where he should not, and to treat her with the respect she deserves as a human being. Three conditions together explain when and why these duties are breached: vulnerability, unwantedness and degradation. Each is a necessary condition, but all three conditions together constitute the wrong of sexual exploitation. The exploiter takes advantage of the exploitee’s morally relevant vulnerability to obtain her consent to sexual acts that are unwanted as sexual acts. Those unwanted acts, chosen under conditions of vulnerability, degrade her. Degradation, on this account, is structural and contextual. The historical and continued use of sexual acts as instruments of domination and subordination in patriarchy imbues all sexual acts with the possibility of degradation. However, it is when unwanted sexual acts are chosen under conditions of morally relevant vulnerability that this possibility is actualised, and the wrong of sexual exploitation occurs. While sexual acts carry this possibility across patriarchal contexts, India’s caste-based patriarchy adds an additional dimension to the degradation of Indian women, due to their instrumentalisation and objectification for the maintenance of caste purity and honour.
In ancient Rome all magistrates or public authorities had potestas, i.e., powers to carry out their duties or civil responsibilities which was derived from a general and sometimes absolute power to rule called imperium. In most cases, the potestas granted to the various magistrates included coercitio, which could, but did not have to, include the power to punish. Similarly, our public authorities have the power to carry out their duties and the ability to compel obedience by force. Legal theory, however, often blurs these distinctions, advancing the idea that the power to punish is primarily what imperium consists of. This has entrenched two general ideas about criminal law. First, that legal punishment is a necessary feature of statehood. Second, that legal punishment is the most paradigmatic and troublesome instance of public force, thus requiring greater political control and procedural restrictions than other forms of coercion. This paper examines the distinction between punishment and enforcement to facilitate more constructive discussions about abolitionism and strengthen the case for greater normative scrutiny of other instances of state power.
What purpose does legal punishment serve when the offender is already enduring profound suffering as a consequence of the offence itself? This paper addresses that question through the concept of poena naturalis: the severe suffering that may result from a grave misfortune affecting the offender or those closely related to her, typically as an unintended consequence of her negligent, reckless, or even intentional criminal conduct. I argue that poena naturalis needs not to be conceptually contrasted with legal punishment. Rather, it is best understood as grounding a legal power to mitigate or even waive punishment. On this account, poena naturalis does not place forgiveness in opposition to justice; instead, it reveals their complementarity. The paper therefore defends a compatibilist account of natural punishment that provides a coherent normative framework for addressing the practical and doctrinal questions that must be confronted if the relevance of natural punishment is to be recognised in positive law.
I argue that our understanding of the basis for corporate criminal liability and punishment would be enhanced by bringing out the different conceptions of the company that the law commonly employs, in shaping liability and justifying punishment. These are the conceptions of a company as (i) an abstract entity, (ii) an entity led by a supreme executive authority, (iii) a ‘real’ entity, and (iv) a concrete legal entity. In the course of the argument, I also make the case for using the increasingly popular ‘failure to prevent’ model of corporate criminal liability, particularly in cases of fault-based criminal wrongdoing by persons associated with the company. In that regard, I conclude with some reflections on the difference that the size and nature (e.g. ‘family firm’) of a company makes to the proper model of liability.
