Abstract Vera Bergelson’s chapter is part of the discussion about how to conceptualize consent. Should definitions in criminal laws be based on the notion of attitudinal consent or on the notion of performative consent? Bergelson defends the attitudinal model of consent, which defines consent as a subjective state of mind. She argues that it would be unfair to punish someone as a sex offender if the other person in fact wanted the sexual act, and that such statutes are not only over-inclusive but also paternalistic. Comparing the outcomes under the two models, she argues that laws based on an attitudinal model are equally well suited to target sexual misconduct and to protect potential victims. She concedes that performative elements may play an important evidentiary role in criminal proceedings and outside of criminal justice, that is, for educational purposes.

In this article, I confront Garvey's argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey's argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey's offender's circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so.

Review, development, and critical analysis of sexual offenses in the United States.

What makes intentional killing under provocation less reprehensible than murder? The answer to this question determines the rationale for the law; and the choice of the primary rationale – justificatory or excusatory – determines the scope and fundamental features of the partial defence.In this article, I attempt to parse through two reforms – one promulgated by the Model Penal Code 1980 (MPC), the other by the Law Commission for England and Wales – and compare their versions of the defence both to each other and to the ‘loss of self-control’ defence of the Coroners and Justice Act 2009 in the hope of determining and appraising the governing rationales for each version of the defence. I conclude that the largely justificatory defence of provocation developed by the Law Commission (and to a lesser degree the ‘loss of self-control’ defence) is legally and morally preferable to the largely excusatory defence proposed by the MPC.

The Model Penal Code (“MPC”) revision of the traditional mens rea provisions has been almost uniformly recognized as an immense success. The MPC framework has been extremely influential: it has been adopted explicitly in more than a half of American jurisdictions, and it often guides judicial interpretation of mens rea in the remaining jurisdictions as well. However, the MPC may have lost some important insights in departing from the traditional mens rea criteria. In this paper, I suggest that, in its strive for simplification, rationality, and utility, the MPC has sacrificed some of the moral complexity of the traditional, common-law mens rea categories. Specifically, I argue that the common-law category of malice is doctrinally important and its abandonment affects the fairness and coherence of the entire body of criminal law.

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. By disregarding Eve’s choice to have sex on her terms (without outwardly expressing consent), the law disregards Eve’s autonomy and treats her as a legally incompetent individual, incapable of independent decisions and requiring special protection. Denying normative force to Eve’s attitudinal consent imposes on Eve an affirmative duty, on the pain of her partner’s criminal conviction, to behave, in the most intimate situations, not how she prefers but how the state tells her to behave. 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. Such laws are offensively paternalistic in that they categorically invalidate Eve’s consent unless she satisfies the absolutist, good-for-all, statutory requirement (explicit encouragement of her partner). Moreover, such laws are implicitly sexist and strongly smack of the infamous requirement of “corroboration” motivated by distrust to women in anything related to sex. The performative model is not suited better than attitudinal to target sexual misconduct. The paper reviews legal outcomes in a number 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. The paper also considers college disciplinary rules regulating students’ sexual conduct and concludes that a model of “contextual consent” may be more appropriate for such rules.

This article engages with Joshua Dressler's theory of duress and develops an alternative account of that defense. My disagreement with Dressler involves four issues: 1. the character of the defense of duress; 2. the meaning of duress; 3. the effect of duress; and 4. the need for this defense in criminal law.

The ability to consent is recognized in moral philosophy as a central manifestation of personhood and individual autonomy. In contrast, today's criminal law extends to people very limited authority to consent as far as their physical well-being is concerned. In this chapter, I discuss how criminal law regulates people's power to consent to infliction of pain. I go over the traditional rationales for invalidating consent to serious physical harm and question whether these rationales are equally applicable to people's consenting to pain unaccompanied by such harm. As I proceed, I challenge the legitimacy and wisdom of imposing criminal punishment on those who inflict pain on the willing victims.

In this article, I try to go beyond the traditional objections to strict liability public welfare offenses and confront other possible justifications for punishing non-culpable conduct. Specifically, I consider the following arguments: penalties for public welfare offenses are punishment by name only, thus traditional justifications for punishment are not needed; even if those penalties are punishment, punishing those who produce or threaten significant harm to others is not necessarily unjust; and even if such punishment is not entirely just, it is consistent with other widely accepted criminal law doctrines.

It is often said that consent is "morally transformative," even magical: it transforms what otherwise would be illegal conduct into conduct that is entirely legal. As the famous maxim goes: volenti non fit injuria-a person is not wronged by that to which he consents. But how literally should we read this maxim? Does consent of one person always have the power to change the moral and legal character of another person's actions?

Recent cases in the US and abroad (UK and Israel in particular) have brought to the academic and public attention the question of whether criminal law should punish an individual who has obtained his partner’s sexual consent by fraudulent statements or actions. Traditionally, sexual consent has been held invalid in cases of fraud in the factum. In cases of fraud in the inducement, on the other hand, consent has not been deemed vitiated. This distinction has been criticized: after all, if A would not have consented to sex with B but for B’s deception, why does it matter what kind of deception it was? In my paper, I explore the arguments for and against criminalization of sexual conduct in cases when consent has been obtained by fraud in the inducement. I conclude that, in those cases in which B’s deception did not significantly diminish A’s capacity for rational decision-making, fraud in the inducement should not eliminate otherwise valid consent. A’s motive for entering into a morally neutral transaction (sexual encounter) is irrelevant. Moreover, A has no right that A’s potential sexual partners forbear from lying or exaggerating or otherwise misrepresenting facts. Finally, interpersonal lies are inevitable and often perform important social functions.