SelectedWorks @ Rutgers School of Law-Newark
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Green__Tax Evasion as crime.docx
No full textFrom the perspective of the criminal law, tax evasion is a baffling and anomalous offense. It deviates from the traditional paradigm of crime in that the harms it causes are highly diffuse, significant only in the aggregate, and hard to identify with any certainty. Tax evasion also differs from other offenses in terms of its incidence, which is probably higher than that of any other serious white collar crime. The laws concerning tax evasion are also enforced in a highly irregular and selective manner. Despite, or perhaps because of, such anomalies, tax evasion is a crime that has tended to fall between the cracks of normative analysis. Criminal law theorists have largely avoided the subject of tax evasion altogether, while tax law theorists, though not avoiding the subject as such, have only rarely applied to it the basic tools of criminal law theory. In this chapter, I will seek to do just that, by arguing, first, that an understanding of how taxes differ from fees, fines, penalties, forfeitures, and other types of government assessments is crucial to an understanding of why tax evasion is morally wrong. Second, I will offer an account of the moral content of tax evasion, explaining the role that the concepts of cheating, disobedience to the law, and what I call “deceptive covering up” play in defining its moral content; and why, further, the concept of stealing is largely inapposite. Finally, I will consider the extent to which my analysis of tax evasion might be helpful in assessing the moral content of tax avoidance
What Counts as Prostitution.pdf
No full textWhat counts, or should count, as prostitution? In the criminal law today, prostitution is understood to involve the provision of sexual services in exchange for money or other benefits. But what exactly is a sexual service ? And what exactly is the nature of the required exchange ? The key to answering these questions is to recognize that how we choose to define prostitution will inevitably depend on why we believe one or more aspects of prostitution are wrong or harmful, or should be criminalized or otherwise deterred, in the first place. These judgments, in turn, will often depend on an assessment of the contested empirical evidence on which they rest. This article describes a variety of real-world contexts in which the what counts as prostitution question has arisen, surveys a range of leading rationales for deterring prostitution, and demonstrates how the answer to the definition question depends on the answer to the normative question. The article concludes with some preliminary thoughts on how analogous questions about what should count as sexual conduct arise in the context of consensual offenses such as adultery and incest, as well as non-consensual offenses such as sexual assault
Consent To Harm
No full textThis article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007). Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent. One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator¡¯s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim¡¯s welfare interests and dignity. If these requirements are not met, the defense should be only partial
Lies, Rape, and Statutory Rape
No full textWhen an offender lies or uses other forms of deception to induce an adult victim into sex, the law normally does not treat that as rape, even when the victim would not have engaged in the act absent the deception. But when the offender himself is deceived into having sex with an underage victim, that is treated as statutory rape, even if, once again, the deception was a but-for cause of the sex. To put it another way, in the case of rape, the person who does the lying escapes liability, while in the case of statutory rape the person who is lied to is punished. At first glance, this seems reversed: why should lie-perpetrators go free while lie-victims are punished? Can such a regime be justified?I will argue that the best way to understand the function of both rape and statutory rape is as part of a larger body of sexual offense laws. Under this approach, sexual autonomy is not a single, monolithic right to sexual self-determination, as some have described it, but, rather, a complex, multifarious “bundle” of rights to engage in, or refrain from, various forms of sexual activity and sex-related conduct; and different sexual offenses should be understood as protecting different “sticks” within the bundle. Rape, under my approach, would protect the basic right to decide whether to have penetrative sex, and with whom. Only misrepresentations regarding the fact of sexual penetration or the identity of one’s partner would be sufficient to invalidate consent for purposes of rape law. Misrepresentations regarding other matters, such as the fact that one’s partner is not using contraception, has a sexually-transmitted disease, or is transgendered, should be dealt with, if at all, by more specialized, lesser offenses within the suite of sexual offenses.Statutory rape should also be viewed within the broader scope of the sexual offenses. It is often said that a child’s lack of consent should be “presumed” whenever the child has sex with an adult. But if children were truly incapable of consenting to sex, it would make no sense to treat the forcible rape of a child as a more serious offense. We are thus presented with something of a paradox: when a child is subject to genuinely unwanted sex, the presumption is that she is capable of consenting to sex; but when she is involved in wanted sex, the law presumes that she is incapable of consenting. To avoid this paradox, we should abandon the concept of statutory rape as involving a presumption of nonconsent, and instead simply view it as analogous to other sexual offenses that are intended to prevent the exploitation of potentially vulnerable members of society. Under this approach, we would understand statutory rape law as protecting only those children who are too young or inexperienced or immature to make the decision to have sex. In cases where a precocious teen misrepresents her age to an adult, the rationale for imposing liability is lacking
Conceptual Utility of Malum Prohibitum.pdf
No full textFor retributivists, who believe that criminal sanctions should be used to punish only conduct that is blameworthy, the so-called mala prohibita offenses have always been a source of concern: When the conduct being criminalized is wrongful prior to and independent of its being illegal - as it is with presumptive mala in se offenses like murder and rape - the path to blameworthiness is relatively clear. But when the wrongfulness of the conduct depends on the very fact of its being illegal - as is said to be the case with presumptive mala prohibita offenses like fishing without a license and buying drugs without a prescription - the argument in favor of criminalization becomes more difficult to sustain. Unless one believes that law-breaking as such is morally wrongful, criminal penalties would seem hard to justify. That, in any event, is the standard liberal, retributivist view. As I shall argue, however, things are considerably more complicated than this account would suggest. No offense, at least in the real world, is wholly malum in se or wholly malum prohibitum. Rather, the concepts of malum in se and malum prohibitum should be understood as contrasting, scalar qualities that all criminal offenses, to one degree or another, possess. Under such a conception, an offense could be, say, 80 percent malum in se and 20 percent malum prohibitum, or 20 percent malum in se and 80 percent malum prohibitum. Thinking about malum in se and malum prohibitum in this way can help us make a more precise assessment of the moral content of criminal offenses, taking account of the various ways in which law and legal institutions inform their moral content, the reasons people obey such laws, and what it means to “obey” the law in the first place
What are the Sexual Offences?
No full textOur law criminalizes a broad array of sexual, and sex-related, conduct. Among the offences that do this (or did until recently) are rape, sexual assault, coercion, human sex trafficking, female genital mutilation, forced marriage, sexual humiliation, voyeurism, public nudity and public indecency, sexual transmission of disease, selling and buying sexual services (prostitution), pimping and pandering, statutory rape and child molestation, abuse of position of trust, child grooming, creating and possessing child pornography, revenge porn, failure to register as a sex offender, fornication, sodomy, adultery, assault by sadomasochism, adult and child incest, bigamy, polygamy, miscegenation, bestiality, necrophilia, and sale of sex toys. While many of these offences, taken separately, have generated a significant body of analysis, there have been relatively few attempts to look at the category of sexual offences systematically, across the board. In this chapter (from The New Philosophy of Criminal Law, edited by Chad Flanders and Zach Hoskins), I intend to take a first step in considering the sexual offences as a whole by seeking to define the category itself. Specifically, I will address two basic issues:First, given the wide range of conduct that is covered, what exactly is to be gained by looking at the sexual offences as a whole? I will argue, among other things, that many of these offences, whether consensual, nonconsensual, or aconsensual, make use of, or rely on, the same set of basic concepts (including “sexual conduct,” “consent,” and “autonomy”) and ultimately reflect an interlocking set of common legal interests, rights, duties, harms, and wrongs. Looking at how the concepts are used in one context may yield insights about its application in a different, related context. Second, what, if anything, distinguishes the sexual offences from other kinds of criminal offences? I will argue that there is no one set of necessary and sufficient conditions that defines the category and thereby distinguishes sex crimes from other kinds of crime. Rather, we need to look to several overlapping forms of prohibitions: on one or more kinds of socially disfavoured sexual acts; on conduct that is presumed to be preparatory of, or conducive to, future (illicit) sexual acts; and on conduct that, though it does not involve sex as such, nevertheless infringes on some aspect of another’s right to sexual autonomy. Part of the challenge here will be to say what it means for conduct to be “sexual” and what distinguishes sexual autonomy from other forms of autonomy
Born Native, Raised White: The Divide Between Federal and Tribal Jurisdiction with Extra-Tribal Native American Adoption
No full textBorn Native, Raised White: The Divide Between Federal and Tribal Jurisdiction with Extra-Tribal Native American Adoption
No full textOfficial Bribery and Commercial Bribery: Should They be Distinguished?
No full textUnder the traditional Anglo-American approach, payments paid to, or received by, a public official in return for official acts constitute a bribe, while payments paid to, or received by, a commercial actor typically do not. But the law in both the U.K. and the U.S. has been changing – most dramatically in the recently enacted Bribery Act 2010, which criminalizes both official and commercial bribery, and draws no distinction between them. Under US law, the traditional distinction between commercial and official bribery remains sharper, though even here there has been a blurring. Which approach makes more sense? Should acceptance of a bribe by a private employee even be treated as a crime? Assuming it should, should it be treated as any less serious a crime than acceptance of a bribe by a government official? And what about the giving of a bribe to a private employee: how should that be treated in comparison to the giving of a bribe to a government official? In this chapter, I argue that accepting or giving a bribe in the commercial context should indeed be a crime, but one that is conceptually separate from accepting and giving a bribe in the government context