Losing the Trees for the Forest: What is Overlooked in Adopting a Unified Theory for Criminalizing Sex.

At the same time, Green suggests that SAP offenses differ from "standard" sexual assault offenses (notably, rape) in an important respect that has been often overlooked in the literature. While scholars have struggled to accommodate SAP offenses with a liberal conception of consent Green urges us to see that, what is ultimately required from the perspective of a liberal-oriented policy maker, is a nuanced "reality check", that will either approve or disprove of SAP's empirical assumptions regarding non-consent. Scholars have struggled for some time with the misfit between SAP offenses and a conventional, liberal-oriented, criminalization theory.[15] Green suggests that notwithstanding the absence of non-consent as a formal element of the offense, SAP offenses do engage with non-consensual sex. Under this theory, SAP offenses differ from sexual assault offenses in style rather than in substance I . i Any liberal opposition to SAP criminalization, therefore, should be cast in terms of the appropriateness of presuming non-consent with respect to each type of authority relations, rather than condemning these offenses as instances of legal moralism or paternalism. [Extracted from the article]

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