Judging behaviour between consenting adults

The rise of the #MeToo movement has seen our society reflect on sexual mores and sexual practices more than ever before. In this complex area where culture, religion, identity and morality intersect, the criminal law can easily fall out of step with society.

Criminalizing Sex engagingly surveys instances where the law has overstepped the mark, criminalising or decriminalising various forms of conduct, and where it has not gone far enough. Adopting a liberal theory of criminal law, Stuart Green articulates what a system of sexual offences that fully respected liberal principles would look like.

In the case of incest, for example, Green investigates whether there is any rationale for criminalising the act of consensual adult incest. He considers three possible rationales for criminalisation, namely that (1) it creates a significant risk of birth defects, (2) it confounds well-established family roles, and (3) the putatively consensual nature of such conduct is often illusory. Green dismantles each of these justifications in turn, and though he stops short of arguing for decriminalisation, he concludes that criminalisation sits uncomfortably with liberal values. Section 64 of the Sexual Offences Act 2003 criminalises ‘sex with an adult relative’, and Green suggests a strict liability regime may have over-inclusive effects.

The law of sexual offences is a constantly expanding and inherently contentious topic. This comprehensive book, 365 pages in total, develops a useful conceptual frame to define the areas where policy disagreements arise, before offering one option for a path to their resolution. It concludes by offering five overarching recommendations to help guide future analysis.

This is a valuable book not only for criminal practitioners but for everyone interested in how and why we judge behaviour between consenting adults to be acceptable or unacceptable.

Nicholas Hall is a criminal barrister at Red Lion Chambers, London