Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation

Criminal Law & Philosophy, Forthcoming

Rutgers Law School Research Paper

12 Pages Posted: 7 Oct 2019

See all articles by Stuart P. Green

Stuart P. Green

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: October 4, 2019

Abstract

In the Realm of Criminal Law, Antony Duff seeks to defend the view (termed “legal moralism”) that we should criminalize conduct only if it is wrongful. Skeptics of legal moralism argue that we do this all the time in supposedly overinclusive offenses whose definitions capture not only the kind of conduct that constitutes the target wrong, but also a wider class of conduct that is not wrongful prior to prohibition. An example is statutory rape. Duff, in response, contends that such offenses need not violate the requirements of legal moralism. Having exploitative sex with juveniles is obviously wrong even prior to its legal regulation (these wrongs are mala in se). But having non-exploitative sex with juveniles is also potentially wrong, inasmuch as it involves a violation of a prohibition that society has decided is justified for instrumental reasons (such wrongs are mala prohibita).

While Duff's analysis offers an ingenious explanation for why offenses like statutory rape need not violate the bare minimum requirements of legal moralism, it simultaneously exposes separate, largely unacknowledged, problems of fair labeling and proportionality. By combining in a single offense wrongs that are primarily malum in se with ones that are primarily malum prohibitum — a process referred to as “wrongfulness conflation” — we risk treating unlike wrongs alike, imposing disproportionate punishments, and blurring offense labels. And such problems occur not just in the context of statutory rape, but also with respect to a host of other supposedly over-inclusive offenses, including various forms of sexual assault.

Keywords: Malum in Se, Malum Prohibitum, Over-Inclusive Offenses, Statutory Rape, Antony Duff

JEL Classification: K14

Suggested Citation

Green, Stuart P., Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation (October 4, 2019). Criminal Law & Philosophy, Forthcoming, Rutgers Law School Research Paper, Available at SSRN: https://ssrn.com/abstract=3464385

Stuart P. Green (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States
973-353-3006 (Phone)

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