Northwestern Pritzker School of Law Scholarly Commons
Abstract
Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws on Max Weber’s theory of authority to suggest that SAR offenders engage in a novel type of abuse of authority. This abuse involves the overstepping of bureaucratic power into personal relationships and specifically the use of charisma of the office in sexual relations. This new conceptualization calls for a reconsideration of SAR criminalization as sex offenses and paves the way for an alternative regulation based on the notion of abuse of office, which is fundamentally understood as anticorruption regulation
