Why Sexual Penetration Requires Justification

Abstract

This article defends the claim that a man who penetrates the vagina or anus of a woman with his penis has committed a prima facie wrong.1 In other words, sexual penetration requires justification. The question of whether sexual penetration is wrongful in the sense we consider here has received little detailed attention in the criminal and philosophical literature. It must be emphasized, however, that this question leaves many further issues to be addressed before a proper evaluation of the criminal law's response to sexual penetration can be completed. As such, this article forms a preliminary part of a larger project. Here, we are not directly concerned with questions of criminalization; we aim simply to map the moral landscape of sexual penetration. If we are right that sexual penetration calls for justification, we must then address the question of how and when it may be justified: for if an act is justified then it should not be prohibited by the criminal law. Moreover, even if an act is morally unjustified, it may nonetheless be an improper target for criminal sanction, since the criminal law is not properly concerned with all morally unjustified conduct.2