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Desensitizing The Essay 'Mistaken Sex' By Jonathan Herring

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Title: Should the law adopt Jonathan Herring’s proposal for how sexual consent should be understood in his essay ‘Mistaken Sex’? If so, how would you justify the reform? If not, why would you reject his proposal or how would you modify it?
Herring’s proposal considers relevant factors in terms of the defendant’s mentality and value of sexual autonomy. However, his proposal does not consider the nature of sexual situations and the effect of desensitizing of sexual offences following his reform. The law should instead add an offence indicating the severity between the levels of rape/assault by penetration and sexual assault to include cases of sex from mistaken consent.
Herring’s proposal reforming the current legal rule regarding consent emphasizes …show more content…

Herring (2005, p.12) then questions whether sexual relationships should be added to the prior list.
Deception and dishonesty in sexual settings have different connotations from those in commercial or civil settings. Procuring benefits through withholding information in commercial deals and civil contracts has been equated to fraud since the inception of these types of agreements. However, deception is inherent to human nature and evolved alongside sexual relationships itself.
Deception is as fundamental to human nature as sex itself. Dr David Smith (2007, p.32) states that ‘evolutionary biology does not endorse the popular and reassuring conviction that human minds are tools for…the pursuit of truth’. The mental capacity of deception benefitted our ancestor’s survival and reproductive success (Smith, 2007, pp.32-34) enough to become a fundamental aspect of the human psyche. All living things have a history of ‘…exploiting one another by sending dishonest signals’ (Smith, 2007, p.63). From the mirror orchid impersonating a female wasp and capitalizing ‘…on the wasp’s sexual urges…’ (Smith, 2007, p.65) to an individual lying about his/her financial status to seduce someone, there is a rudimentary link between deception and sexual relations. Therefore, it is unreasonable to consider any level of dishonesty being tantamount to vitiating consent in sexual

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