CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, April 2, 2020

Maggen on Sexual Degradation

Daniel Maggen (Yale University, Law School) has posted When You're a Star: The Unnamed Wrong of Sexual Degradation (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
The #MeToo movement is often criticized for its conflation of sexual assault, sexual harassment, and offensive but not legally actionable behavior. This objection is often accompanied by criticism of #MeToo’s failure to adhere to the legal paradigms that inform sexual assault and harassment, presumably setting back the efforts to advance them. Finally, the #MeToo movement is often faulted for its failure to accord those it accuses with the procedural safeguards of due process.

Responding to these objections, This Article claims that instead of viewing #MeToo only as an effort to make the prohibition of sexual assault and harassment more effectual we should also understand it as the attempt to articulate the moral wrong of sexual degradation that has hitherto been hidden in the shadow of extant legal wrongs. In this, the Article claims, #MeToo is the continuation of the mutuality approach in legal scholarship, developed in response to a transactional shift that has taken hold of rape law.

The Article further argues that in its evolution from a scholarly debate to a mass public discourse, the wrong of sexual degradation has taken on three distinct features. First, like sexual harassment, sexual degradation revolves around the communicative and intentional aspects of the harm rather than on its tangible effects. Second, although sexual degradation mostly subscribes to the mutuality paradigm’s condemnation of the use of non-sexual leverages against another individual’s sexual judgment, #MeToo mostly reserves condemnation to those cases in which such leveraging takes place against the backdrop of domination, allowing the transgressor to use his non-sexual eminence to trump the victim’s sexual judgment. Third, unlike the mutuality paradigm, #MeToo’s conception of sexual degradation commonly disregards sexual degradation that occurs as a result of relational domination, effectively creating a relational exemption.

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