The Criminalisation of Abuse and the Right to Freedom from Domination

This seminar is offered as a hybrid in-person/online event.

ABSTRACT:

According to the standard view criminal law deals with public, rather than private wrongs. Yet certain areas of criminalization pointedly challenge this assumption. The field of sex offenses is one prominent example, due to the widely accepted notion that the main purpose of sex offenses is to vindicate individuals’ right to sexual autonomy. The purpose of this paper is to discuss a host of emerging criminal offenses – which I refer to as abuse offenses - that further complicate the relationship between individual rights and the criminal law. One group of abuse offenses, introduced in recent years in the US, Israel, and elsewhere, is a sub-category of sex offenses that prohibits abusive sex in hierarchical relationships (such as abuse by police officers, health care professionals, workplace supervisors, or the clergy). In another field of criminalization – domestic violence - England and Wales have introduced a new offense that prohibits abuse, defined as “coercive or controlling behavior” in intimate relationships. Although these offenses are usually not discussed together, this paper points to their common features and addresses the distinct question they raise, in terms of the tension between individual rights and the criminal law. 

I will argue, first, that – although not using those exact terms - current accounts offer three distinct conceptualizations for abuse offenses, along the public interest / private right divide. One position, manifest mainly in the context of sexual abuse by officials, has been to advocate a “public” vision of the offense, stipulating that abuse prohibitions are aimed at protecting public interests (i.e., prevent public corruption). Another interpretation, at the other side of the spectrum, posits that notwithstanding the omission of non-consent as a formal element, sexual abuse offenses are designed to protect individual autonomy by presuming non-consent to sex in certain types of power relations. A third position, presented by Victor Tadros in the context of domestic violence, considers the wrong of abuse under a neo-republican conception of freedom from domination. This paper builds on Tadros’s work and on additional neo-republican sources, to examine more broadly the plausibility of a right to freedom from domination in the criminal law.

The main premise of any such discussion, I shall argue, is that domination presupposes social structures of power, and hence is distinct from offense to autonomy and cannot be reduced to a purely private wrong. On the face of it, this analysis relieves the tension between a public conception of the criminal law and the vindication of individual rights. However, the consideration of abuse/domination under a purely public conception of wrongdoing is similarly misguided. Rather than attending to the abstract harms of corrupting public office, many abuse offenses have in mind particular victims, and perceive abuse as offensive to individuals. While contemporary accounts have typically considered abuse under a binary division of public versus private wrongs, this paper contemplates the hybrid nature of its wrongfulness. Moreover, it aims to explore the contents of wrongful domination, and the underlying concept of freedom from domination, which are reflected in the distinctive jurisprudence of abuse offenses. This interpretative analysis is vital in order to enable, at a later stage, a fresh normative assessment of the justification of criminalizing abuse. Any debate or controversy around the proper limits of the criminal law in this field, should take note of republican-based arguments, and can hardly be satisfied with the conventional tools of a liberal-oriented criminalization theory.