Abstract
The paper is an application of the “principle of just deserts” (that is, retribution) to the setting of statutory penalties. The conclusion is that there should be no separate penalty for rape but that rape should be punished under the ordinary battery statutes. The argument has four parts. First, there is a description of the place of rape in a typical statutory scheme. Second, there is a consideration of possible justifications for giving rape the status it has in such a typical scheme. All justifications appear to fail for one reason or another. Third, rape is analyzed as battery and the analysis is justified. This analysis includes an explanation of why it would be unjust to punish rape more severely than ordinary batteries. Last, there is a catalogue of some practical advantages to treating rape as battery (for example, simplifying proof of the crime). The paper takes the principle of just deserts (in the form I have elsewhere defended it) for granted, but does add substantially to the understanding of how to apply it.
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Work on this paper was funded in part by an Organized Research Grant from Illinois State University for June 1982. An early version of this paper was presented at the Annual Meeting of the Academy of Criminal Justice Sciences, Louisville, Kentucky, 24 March 1982. I should like to thank Michael Gorr, Mortimer Kadish, Sue LaSeure, Pat Murphy, Clark Zumbach, and Debra Zumbach, among others, for helpful comments on one or another draft.
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Davis, M. Setting penalties: What does rape deserve?. Law Philos 3, 61–110 (1984). https://doi.org/10.1007/BF00211225
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DOI: https://doi.org/10.1007/BF00211225