Books by Michelle Madden Dempsey
What should public prosecutors do when victims withdraw support for domestic violence prosecution... more What should public prosecutors do when victims withdraw support for domestic violence prosecutions? This book defends the claim that (within the realm of justified/permissible action) prosecutors should respond effectively; which is to say that ceteris paribus domestic-violence prosecutors should respond as feminists. This claim is intended as a provocative formulation of the proposition that domestic violence prosecutors should act for reasons generated by the value of reconstituting their states (and communities) as less patriarchal. In defending this claim, the book first sets out a general theory of prosecutorial practical reasoning and then considers the prosecution of domestic-violence offences in particular. Along the way, it provides an original account of the nature of prosecutorial action, the values that can be realized through such action, and the relationship between these values and the practical reasoning of criminal prosecutors. Moreover, it provides analyses of two key concepts — domestic violence and patriarchy — and explains the relevance of the latter to a proper understanding of the former. Putting these insights to work in answering the question stated above, this book provides an account of what prosecutors would be justified in doing in such cases and what prosecutors should do in order to be effective as domestic violence prosecutors. Later chapters apply this general framework in addressing the rights and duties of domestic violence victims to participate in criminal prosecutions and responding to some general objections that might be raised against envisioning the role of domestic-violence-prosecutor-as-feminist.
Articles by Michelle Madden Dempsey
Criminal Law & Philosophy, 2020
This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfe... more This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfeiture and Punishment (Oxford University Press 2017). Primarily, the article grapples with Wellman’s claims regarding the moral permissibility of sadistic punishment. The metaphor of “philosophical languages” is employed throughout, to compare (translate) Wellman’s use of rights-forfeiture discourse to an approach that is grounded in practical-reasons discourse. This study in philosophical translation allows us to reassess and critique Wellman’s conclusions regarding the moral permissibility of sadistic punishment. On one level, the article is an attempt to engage with Wellman’s book and rights-forfeiture based arguments on, and in, their own terms. Yet, the article is also an attempt to explain and defend a practical reasons based approach to appraising moral permissibility. If the article succeeds, it both pays tribute to Wellman’s masterful rights-forfeiture arguments, while making the case that practical-reason arguments illuminate a wider range of salient considerations that we should wish to keep in view when considering the moral permissibility of sadistic punishments.
Law, Ethics, and Philosophy, 2019
This paper presents a way of thinking about public wrongs, offered as a friendly am... more This paper presents a way of thinking about public wrongs, offered as a friendly amendment to the view articulated by Antony Duff in his recent book, The Realm of Criminal Law (2018). The view defended here is distinct from Duff’s in three ways. First, it denies a sharp distinction between public and private accountability, preferring instead to view matters as scalar. Second, it asks whether conduct is wrong, before asking whether it is a public wrong. Third, it views public accountability as taking place within various public realms, rather than conceiving of the public realm as primarily associated with the state. Along the way, this paper presents a brief sketch of public and private accountability and illustrates both the structural and practical implications of these two different ways of thinking about public wrongs.
Jerusalem Review of Legal Studies (2019), 2019
This article is a contribution to a festschrift volume celebrating John Gardner's work, addressin... more This article is a contribution to a festschrift volume celebrating John Gardner's work, addressing Gardner's distinction between reasons to succeed and reasons to try.
"If it is genuinely impossible for one to succeed, is there still any reason to
succeed? Any reason to try to succeed? Any reason to do something as a fallback measure, given that success was impossible back when it was time to succeed in the first place? John Gardner and Antony Duff disagree as to the correct answer to the first question: Gardner says yes, Duff says no.1 In Section 2, I explain my agreement with Duff over Gardner on this point. In Section 3, I explain the sense in which one can have a reason to try to succeed, even when success is genuinely impossible. Finally, in Section 4, I suggest that the impossibility of success might leave a moral residue that grounds practical reasons to do something else as a fallback measure at later time.2 In sum, this article attempts to tread a middle path between Gardner’s and Duff’s accounts regarding how the impossibility of success might impact our rational horizons.
Criminal Law & Philosophy, 2018
This article explores some conceptual issues regarding criminalization at the domestic and intern... more This article explores some conceptual issues regarding criminalization at the domestic and international levels. It attempts to explain what it means to say that a particular kind of conduct has been criminalized, and considers how the processes of criminalization differ in domestic and international law. In unpacking these issues, the article takes the examples of rape and sex trafficking in domestic and international legal systems, explores whether these offenses are criminalized more broadly in international criminal law as compared to domestic criminal law, and briefly outlines possible explanations for this disparity.
Journal of Human Trafficking, 2017
This article, a contribution to a special issue of the Journal of Human Trafficking examining “da... more This article, a contribution to a special issue of the Journal of Human Trafficking examining “data wars” amongst empirical researchers who purport to study the prevalence of human trafficking, explores how closer attention to legal methods may improve the validity and reliability of research regarding the prevalence of trafficking for the purpose of sexual exploitation. The author hopes to illuminate and motivate two conclusions. First, some researchers have failed to accurately analyze the legal definitions of trafficking for the purpose of sexual exploitation and instead have used inaccurately narrow definitions in their research. By so doing,
they have undercounted the prevalence of trafficking and have produced scholarship that is of limited relevance to legal and policy debates regarding the regulation of prostitution. Second, some researchers have provided inadequate application of the facts in particular cases to the legal definitions of trafficking for sexual exploitation. As a result, their scholarship suffers from a lack of clarity regarding why they fail to count some cases as trafficking—and this lack of clarity contributes to a lack of reliability, since the reader is unable to discern their method for determining which cases count as trafficking and which do not. As a result of these problems, the empirical research critiqued in this article is of limited value in guiding law and policy debates regarding the regulation of prostitution.
University of Pennsylvania Law Review, 2010
In debates regarding what sort of policy and legal responses are most appropriate in addressing t... more In debates regarding what sort of policy and legal responses are most appropriate in addressing the problem of sex trafficking, it is possible to identify two sides: abolitionists and non-abolitionists. One point that sharply divides these two sides concerns whether to criminalize buying sex. Some think that the feminist-abolitionist call to criminalize the purchase of sex faces insurmountable objections. If selling sex is a genuinely consensual and valuable experience for some people, the argument goes, then feminist abolitionism’s arguments against buying sex must fail. This Article considers what concessions, if any, feminist-abolitionism should make in response to this objection and articulates two justifications for criminalizing the purchase of sex that are immune to the objection.
Criminal Law and Philosophy, 2013
This article examines the normative force of consent, explaining how consent works its ''moral ma... more This article examines the normative force of consent, explaining how consent works its ''moral magic'' in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission. When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one's conduct: cases in which one is consent-insensitive to the rational force of another's consent, and cases in which one acts for sadistic reasons.
Criminal Law and Philosophy, 2012
This article provides a comparative analysis of various methodologies employed in building argume... more This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism and Prostitution (OUP 2010) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends the philosophical method as one (amongst other) valuable ways to argue about prostitution.
Criminal Law Philosophy, 2012
Oxford Journal of Legal Studies, 2007
This article defends the claim that a man who penetrates the vagina or anus of a woman with his p... more This article defends the claim that a man who penetrates the vagina or anus of a woman with his penis has committed a prima facie wrong.1 In other words, sexual penetration requires justification. The question of whether sexual penetration is wrongful in the sense we consider here has received little detailed attention in the criminal and philosophical literature. It must be emphasized, however, that this question leaves many further issues to be addressed before a proper evaluation of the criminal law’s response to sexual penetration can be completed. As such, this article forms a preliminary part of a larger project. Here, we are not directly concerned with questions of criminalization; we aim simply to map the moral landscape of sexual penetration. If we are right that sexual penetration calls for justification, we must then address the question of how and when it may be justified: for if an act is justified then it should not be prohibited by the criminal law. Moreover, even if an act is morally unjustified, it may nonetheless be an improper target for criminal sanction, since the criminal law is not properly concerned with all morally unjustified conduct.
Criminal Law Review (UK), 2005
This article critiques the Wolfenden Committee’s conclusion that criminalising prostitute-use is ... more This article critiques the Wolfenden Committee’s conclusion that criminalising prostitute-use is inconsistent with the liberal harm principle. Section 1 evaluates recent empirical evidence challenging Wolfenden’s assumptions regarding prostitution. Section 2 analyses prostitute-use involving those who have been forced or coerced as a direct harm offence of rape. Section 3 presents a new approach to criminalising the conduct of prostitute-users, and sketches a prima facie case in favour of criminalising solicitation for prostitute-use as an abstract endangerment offence. [Note: The phrase “prostitute-use” is borrowed from Julia O’Connell Davidson’s PROSTITUTION, POWER AND FREEDOM (University of Michigan Press, 1999). I have since stopped using this phrase, for a variety of reasons that I may explain if I ever manage to write a book on this topic. I now simply use the phrase “buying-sex.”]
American Criminal Law Review, 2000
Despite the United States’commitment to decriminalizing victims of sex trafficking and the obviou... more Despite the United States’commitment to decriminalizing victims of sex trafficking and the obvious injustice of subjecting these victims to criminal penalties, the majority of jurisdictions throughout the United States continue to treat sex trafficking victims as criminals. This essay argues that the criminal law must abandon this practice. Part One presents a brief account of definitional and conceptual debates regarding what counts as sex trafficking. Part Two explains why we must decriminalize its victims. Part Three outlines four methods of decriminalizing sex trafficking victims, and defends what has come to be known as the “Nordic model” as the most effective means of achieving decriminalization.
Modern Law Review, 2007
This article examines domestic violence criminal prosecutions and addresses what "effective" pros... more This article examines domestic violence criminal prosecutions and addresses what "effective" prosecutorial action means in such cases.The argument elaborates on a point recently articulated by the UN Special Rapporteur onViolence againstWomen, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that effective prosecution of domestic violence means prosecution which constitutes the State as less patriarchal ceteris paribus.
William Mary Journal of Women and the Law, 2006
Criminal Law and Philosophy, 2014
This Article undertakes a comparative analysis of the UN definition of trafficking (Art 3, Protoc... more This Article undertakes a comparative analysis of the UN definition of trafficking (Art 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children) and definitions of trafficking enacted in the domestic law of many state parties to the Protocol. The article identifies significant discrepancies between international and domestic definitions of trafficking and considers possible explanations for the gaps between the international and domestic law definitions.
This essay argues that the dualistic conception of work in Catholic social teaching – most notabl... more This essay argues that the dualistic conception of work in Catholic social teaching – most notably in John Paul II’s Laborem Excerens – may provide a bridge between otherwise deeply divided views regarding how to conceptualize and define sex trafficking.
Journal of Catholic Social Thought, 2012
Social Legal Studies, 2011
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Books by Michelle Madden Dempsey
Articles by Michelle Madden Dempsey
"If it is genuinely impossible for one to succeed, is there still any reason to
succeed? Any reason to try to succeed? Any reason to do something as a fallback measure, given that success was impossible back when it was time to succeed in the first place? John Gardner and Antony Duff disagree as to the correct answer to the first question: Gardner says yes, Duff says no.1 In Section 2, I explain my agreement with Duff over Gardner on this point. In Section 3, I explain the sense in which one can have a reason to try to succeed, even when success is genuinely impossible. Finally, in Section 4, I suggest that the impossibility of success might leave a moral residue that grounds practical reasons to do something else as a fallback measure at later time.2 In sum, this article attempts to tread a middle path between Gardner’s and Duff’s accounts regarding how the impossibility of success might impact our rational horizons.
they have undercounted the prevalence of trafficking and have produced scholarship that is of limited relevance to legal and policy debates regarding the regulation of prostitution. Second, some researchers have provided inadequate application of the facts in particular cases to the legal definitions of trafficking for sexual exploitation. As a result, their scholarship suffers from a lack of clarity regarding why they fail to count some cases as trafficking—and this lack of clarity contributes to a lack of reliability, since the reader is unable to discern their method for determining which cases count as trafficking and which do not. As a result of these problems, the empirical research critiqued in this article is of limited value in guiding law and policy debates regarding the regulation of prostitution.
"If it is genuinely impossible for one to succeed, is there still any reason to
succeed? Any reason to try to succeed? Any reason to do something as a fallback measure, given that success was impossible back when it was time to succeed in the first place? John Gardner and Antony Duff disagree as to the correct answer to the first question: Gardner says yes, Duff says no.1 In Section 2, I explain my agreement with Duff over Gardner on this point. In Section 3, I explain the sense in which one can have a reason to try to succeed, even when success is genuinely impossible. Finally, in Section 4, I suggest that the impossibility of success might leave a moral residue that grounds practical reasons to do something else as a fallback measure at later time.2 In sum, this article attempts to tread a middle path between Gardner’s and Duff’s accounts regarding how the impossibility of success might impact our rational horizons.
they have undercounted the prevalence of trafficking and have produced scholarship that is of limited relevance to legal and policy debates regarding the regulation of prostitution. Second, some researchers have provided inadequate application of the facts in particular cases to the legal definitions of trafficking for sexual exploitation. As a result, their scholarship suffers from a lack of clarity regarding why they fail to count some cases as trafficking—and this lack of clarity contributes to a lack of reliability, since the reader is unable to discern their method for determining which cases count as trafficking and which do not. As a result of these problems, the empirical research critiqued in this article is of limited value in guiding law and policy debates regarding the regulation of prostitution.