Balkinization  

Monday, September 20, 2004

The Separate Harms of Reckless Sex

Ian Ayres

Ian Ayres & Katharine Baker

Even though a new Illustrated report casts Kobe Bryant in an unsavory light, the collapse of the Bryant prosecution is likely to be the first step toward redemption of the star’s reputation. To many, he is guilty of nothing worse than adultery. His wife has forgiven him. Expect Bryant Nike commercial before the end of the year.

But regardless of whether the sex was consensual or not, Bryant did something dangerous in that hotel room. He had unprotected sex with someone less than 2 hours after they met. Magic Johnson’s earlier example teaches us that reckless sex can endanger the lives of literally dozens of others. Reckless sex deserves separate censure.

This kind of behavior is not the norm. Most people use condoms for one-night stands. According to two different national studies, the majority of adults report using condoms in casual, or non-ongoing, relationships. Some of these people use condoms to prevent disease, some to prevent pregnancy.

But Bryant was not concerned enough about these risks to use a condom. At a minimum, he was reckless in ways that can cause serious harms.

The lion’s share of sexually transmitted infections are caused by first-time sexual encounters. Almost all of these diseases could be prevented with condom use.

Unprotected first-encounters are also correlated with coercion. Few men careful enough to use a condom are reckless enough to rape. The same recklessness that causes men to overlook the risk of disease and pregnancy can also lead them to overlook whether the woman has truly consented.

When rape happens early in a relationship, male misperception is a major cause. Indeed, in a statement yesterday, Bryant has explicitly conceded just this kind of misperception. After unconditionally apologizing “for [his] behavior that night,” Bryant admitted: “Although I truly believe [sic] this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter.”

The dismissal of Kobe Bryant’s case highlights the need for a new kind of criminal law that would both promote public health and help reduce the tragedy of sexual coercion.

A new crime of “reckless sexual conduct” should target unprotected first encounters. To convict, prosecutors would need to show beyond a reasonable doubt (i) a first-time sexual encounter between the defendant and the victim; and (ii) no use of a condom. The defendant would then have the opportunity to prove, by a preponderance of the evidence, that the victim consented to the unprotected sex.

Giving men a new incentive to wear a condom in first-time sexual encounters should significantly reduce both the risk of sexually transmitted infections and the tragic lack of communication that often gives rise to the illusion of consent. The very act of stopping to put on a condom should increase deliberation and communication. The more deliberation and communication, the lesser the likelihood of acquaintance rape. If Bryant had paused to use a condom, the tragedy of this event might never have occurred.

The crime of reckless sexual assault would also be a powerful prosecutorial tool for the thousands of acquaintance rape cases that are simply not winnable under current law. It represents a way to partially overcome the “he said/she said” dilemma. For some, reasonable doubts remain whether William Kennedy Smith or Mike Tyson raped, but there is no doubt that they engaged in unprotected, first-encounter sex.

Proof of this type of reckless conduct should be sufficient to shift the burden to men to prove consent. The message to men is not necessarily to forego one-night stands, but rather to use a condom or communicate enough so that you can trust your partner.

The new crime of reckless sex would not replace current rape laws and it would not immunize men who rape with condoms from prosecution under existing law. This supplementary crime need not be punished that severely. But, like DUI laws, its very existence would send a clear message that society can punish reckless behavior because it is physically and emotionally damaging, even if it is not motivated by animus..

We are all hurt by a world in which sex is reduced to a base, non-communicative physical act. People on the right and the left side of the political spectrum can agree that extremely casual, unprotected sex does little good for anyone and has the potential to do much harm.

A crime of reckless sex, by encouraging men to protect their sexual partners from disease and pregnancy, can simultaneously encourage men to deliberate and communicate in a way that promotes public health and greatly reduces unnecessary and damaging sexual violence.

We have drafted a model statute (just 200 words) expressly codifying this new crime. In a forthcoming law review article in The University of Chicago Law Review, we provide a more in depth defense of the statute. You can download a prepublication copy here.

Comments:

We are all hurt by a world in which sex is reduced to a base, non-communicative physical act...

And what does sex become when the government starts issuing mandatory instruction manuals?

I sincerely hope, also, that U.Chicago asks for some support on ideas like "Unprotected first-encounters are also correlated with coercion. Few men careful enough to use a condom are reckless enough to rape."

I'd have to say, all in all, though, that the most offensive concept included here is the concept that women are to be presumed nonconsenting victims barring a showing great enough to burst the bubble on the behalf of the presumed agressor male. Why are women incapable of responsibility? Should we begin acting paternalistically towards this class again, as if they had no capacity to think for themselves?

As long as you continue to suggest that only men bear the responsibility for safe sexual contact, and call any woman involved in unsafe sex a "victim," you deny your own premise that "People on the right and the left side of the political spectrum can agree that extremely casual, unprotected sex does little good for anyone and has the potential to do much harm." If its an evil to both sexes, then why only punish one of them?

Or maybe its just that, on top of ignoring every possible sexual role of the female that involves any sort of choice or empowerment, it doesn't make a whole lot of sense. "If Bryant had paused to use a condom, the tragedy of this event might never have occurred." Are you joking? The suggestion here is for what, a rape "cooling off" period? Or shall we go back to the point where the victim who asks her agressor to use a condom is accused of consent as a result?

The simple fact of the matter is, certainly anyone will agree that rape without a condom is more of a crime than rape with a condom. Certainly the penalty for a nonconsentual sexual attack of the nature suggested should be aggravated as a result. But to suggest that the proof of rape can be contained within a contraceptive is simply ridiculous. The proof of rape is in consent. Not the accessories involved. And if you feel reckless sex deserves separate public censure, good for you. Perhaps your local health department should be involved. But before you get it involved, have the faith in your gender to understand that both people in that hotel room committed a dangerous act, in the eyes of the Court. Men are not, by virtue of their gender, more or less capable of responsiblity, nor are women less capable. By litigating to place all responsibility for safety in the hands of the men, I highly doubt the result is a greater degree of safety in any regard.

Keep in mind, under your proposed statute, that a woman infected with an STD, who is aware of that fact, can have unprotected sex knowingly and consentingly with a healthy male, who is then himself prosecutable for the risk another intentionally subjected him to by virtue only of his gender. You've come a long way, baby. And you're headed right back in the opposite direction...
 

I have to agree with the first commenter. My gut reaction to this proposal is that it's a terrible idea. I could echo CC's concerns, but I will just add something new to the conversation. You state that one benefit of this new crime would be partially overcoming the he said/she said dilemma. But doesn't it just replace the old dilemma with a new one? Wouldn't there be a new he said/she said dispute about whether or not they agreed not to use a condom? I don't see that this is any easier to resolve than whether or not they consented to have sex. In fact, it would probably be harder. There is extrinsic evidence that can support a claim of consensual or non-consensual sex, but I can't think of any evidence that would support a claim of consensual unprotected sex or non-consensual unprotected sex, other than the testimony of the two individuals.

Of course unprotected sex is a huge public health problem, but I do not think criminalizing that conduct gets us anywhere closer to a solution. And not insignificantly, I think it also violates people's fundamental rights.
 

Sorry, I also wanted to add that I have not read the full article. (I plan to, as soon as I find time to read all 84 pages of it!) My comments are just in response to your post here. Perhaps you address some of my and CC's concerns in the article.
 

Your proposal would imprison adults for consensual sex.

I disagree, and I am reminded of a common argument advanced in favor of sodomy laws -- that people should be protected against their own bad judgment.

While reckless sex is obviously a bad idea, such conduct between two consenting adults is NOT assault -- and it should not be the business of the state to invade citizens' privacy, especially with criminal sanctions.

Furthermore, making the accused defendant prove there was consent flies in the face of a long constitutional tradition.
 

The defendant would then have the opportunity to prove, by a preponderance of the evidence, that the victim consented to the unprotected sex.Ahem: defendants don't need to PROVE anything. The case must be proved against them. You are innocent until proven guilty. This kind of law is preposterous on the face, ridiculous in its nature, and the kind of micro-regulation safety nuts favor to further Balkinize the legal system and make additional criminals out of normal people.

I'm guessing this is just a "joke" post, not a serious intellectual argument. What's next, the exact nature of consenting? What do you propose, official contracts signed by two individuals and witnessed by a third party?
 

Echoing the above...

1.) Not constitutional. Innocent until proven guilty, not the other way around.

2.) Again - not constitutional. Assuming women are the victim and men are the perp - violates equal protection.

3.) Condescending. Why not start putting people in prison for reckless eating (e.g. the cops visit your house because you have been spotted feeding McDonalds to your kids more than 3 times this week). Same principle.

This is exactly the kind of thing that makes people disgusted with the legal profession. It ranks up there with the top 10 stupidest ideas of all time.
 

Not to interject a note of mere reality into this lovely academic exercise, but have you people lost your minds?

Let's ignore the ethical issues -- should the law interpose so completely into the most private of acts? -- and the clearly implied infantilazation of women -- in the presumption that women need additional legal protections against sexual contact the authors deem undesirable.

Let's also ignore the rather explicit double libel against Bryant -- first, by continuing to effectively accuse Bryant of a crime after charges were dropped, and second by asserting that Bryant endangered the girl by having sex with her without a condom, when their own article says that Bryant in fact desisted from what he believed to be consensual sex because he had no condom.

Let's further ignore the fact that their theory of the crime of rape makes it possible for a man to have what he believes, in good faith, to be consensual sex, but in law be committing a crime because the woman is considered capable of appearing to consent while not actually consenting.

Ignoring all of these issues, have the authors considered the consequences this law would have?

If a man can believe that he has the woman's consent, even active co-operation, in having sex, and still be raping her, how much more difficult would it be for a man to be certain of her consent to have unprotected sex? Increasingly, the law regarding rape already requires a man to have telepathic powers so as to divine what the woman really means when she appears to consent, and powers of clairvoyance in order to be certain that the woman not only consents at the time, but will continue to avow consent in the future. And while their proposed law makes consent to unprotected sex an affirmative defense, how do they propose to determine that consent at trial? Will they require a signed affidavit?

As descibed, it appears that the authors propose to make it possible, under the law, to have consensual sex without a condom, while a crime is being committed in the fact that this consensual sex act is taking place without the condom. But how can a woman consent to a sex act that takes place without a condom, without necessarily consenting to sex without a condom?

On the other hand, if the sex act is not consensual, but takes place with a condom -- the authors cite case law to show this is possible under the law -- it is already the crime of rape. Is it the author's intent to make rape without a condom a more heinous crime than rape with a condom? If so, why not simply amend the existing criminal rape statutes?

It would appear either that the law is inherently vacuous, describing as a crime an event that cannot occur, or it is an attempt to invent a new crime which can only occur during, and as a consequence of, something already a crime. At best, it's mere posturing, a way to say something controversial to get attention -- something I, as a sometimes academic myself, have some sympathy with, but it should generally be better concealed than this.

At worst, it creates a crime that can only be committed by a man, that can be committed with all good faith on the man's part, without criminal intent, and which only becomes a crime after the fact when the woman has second thoughts -- and inherently assumes that a woman, because she is a woman is not as capable as a man of making an adult choice, and of then living with the consequences of that choice.
 

You meddlesome busybodies. I'm not going to waste time giving this a point-by-point critique; I have people to do that for me. My observation is of a different sort: I am so glad Americans are armed to the teeth, for I can't begin to imagine the sort of tyrannical exquisiteness you would come up with if you really thought you had a free hand.
 

This is one of those ideas that looks good on paper but that cannot be implemented in the real world. The practical legal difficulties would be enormous as would the potential for prosecutorial abuse.

The ugly truth of the matter is that once two people voluntarily enter a bedroom together and close the door, the law has little power to protect either of them unless so much violence occurs that it leaves unmistakable evidence.

Traditional culture avoided such problems by strongly discouraging the the one-night-stand. The past couple of generations have decided that sexual freedom is more important than physical safety.

Individuals who voluntarily place themselves in these vulnerable situations will have to accept the risk. The State does not have the moral or practical power to protect them.
 

You're joking... right?
 

These authors have tenure?
 

"The very act of stopping to put on a condom should increase deliberation and communication. The more deliberation and communication, the lesser the likelihood of acquaintance rape."

If this is the thrust of your desired outcome, then perhaps a signed declaration prior to the commencement of intimate relations should be obtained by whichever party wishes to initiate said relations.

An appropriate instrument may be modeled on the widely accepted practice of obtaining an agreement regarding the distribution of assets obtained by signatory parties prior to entering into a merger. Commonly referred to as a pre-nup.

Call it a pre-coital agreement. It should engender a grat deal of deliberation and communication.

BTW, in the original concept, does the term condom refer to a penile condom, vaginal condom, or both?
 

You know, if law professors all got a free subscription to Hustler, they might get this nonsense out of their systems before they dragged into the class- and courtrooms...
 

What about unprotected sex between lesbians?

What about unprotected first encounter sex between mormon homosexuals who pledge not to have sex, ever, until they have formed a civil union, but are nonetheless not spouses the first time they have sex?

What if someone has unprotected first time sex, and then the other partner dies in a car accident?

Hey buddy - nice attempt to criminilize one night stands (but only for men) - but it will never work.
 

Lousy law. Lousy social policy.
 

"Lusy law and lousy public policy."

Yeah, that's what I meant, and in only a few words.
 

I welcome this ground breaking law for its foresight, equality, and fairness, and have posted my response here.
 

I read the PDF, and it's worse than I expected.
 

Warble, I'm not sure if you are blaming all feminists here, or just the Marxist-feminists (whatever that term means), but I'd just like to say that I consider myself to be a feminist, and I absolutely disagree with this proposed law of reckless sexual conduct (as I stated in my comment earlier). Not all feminists are man-haters. So please don't denounce all feminists just because these two people proposed a law that you think is a horrible idea (as do I).

I think that the reason this law sounds so bad to me is BECAUSE I am a feminist. At least, that's partly why I disagree with it. They seem to only be targeting men, and they seem to be forgetting that it takes two people to have sex without a condom. And as other posters have pointed out, male condoms are not the only means of birth control/STD prevention.

New crimes should not be created as a means to deal with difficulties in prosecuting people of other crimes.
 

Wow. I have to say, Warble, you have left me almost speechless. I'm reluctant to respond to you at all, since that will only elicit more vitrol. I mean, how can I respond to a statement like "any woman that calls herself a feminist is, IMHO, a bitch, whore, murderer, closet communist, and worse?" It defies all rationality.

Now, your statement that people view you as very dangerous - that seems entirely reasonable.

Thanks for the laughs.

(Steven, I was willing to continue a conversation with you, but you'll have to forgive me for wanting to abandon this thread of comments altogether.)
 

I think Warble would do well to read some of the works of equity feminists such as Wendy McElroy,Christina Hoff Summers,Resa LaRu Kirkland,etc. While I will never call myself any type of femminist these women (and yes they do not mind been called wo- MEN) get it.
I can understand your anger. I myself had to deal with my hatred of all things feminist until I started studying feminism 2 years ago. Although there are many (alot) of gender feminists out there (see authors of this report) we cannot paint all feminists with the same brush. Gender feminists are vindictive,slimy,and sick individuals who ( as you I expect think ) should be shot and locked up. On the other hand the authors I have posted above should be honored and saluted. They are one of the good guys (er girls).
I expect you have been harmed in some way by a vindictive women.I have. I belong to a man's group who is fighting the gender feminists but so are the above authors. I will never let anyone accuse me of been a femminist. I am a masculinist and proud of it. I am still angry as hell at those gender femminists who have done some unspeakable attrocities in the name of promoting the feminist cause but I recognise a gender feminist when I see one and embrace an equity femminst when I encounter them.
As to the "authors" article I totally agree that this is another male bashing piece written to entice the type of response that you posted.
I expect how ever that they did not expect the overwelming negative learned responses given here. I think the gender feminists of today are beginning to realise (or perhaps not) that there is a backlash growing.That backlash includes both men and women. The movement is just beginning (see Fathers 4 Justice) and it will only continue to grow.The backlash has started and I believe will in the end bring women and men closer together in this silly gender war that has been going on for the last 30 years.
Now if someone would just tell me how to get my comment section going in my blog I would be happy.
 

"Heaven and earth treat humanity like straw dogs".
- Lau Tzu, ~550bc

I know I'm a bit late into the discussion, but I thought I'd pitch my bit in anyway. It certainly looks as though such a law would increase pre-sex communication and reduce disease. However, if we need laws to increase dialog before such an intimate act, perhaps we should become extinct. At least, this would be the natural outcome, if things are left to follow their natural course. Its not wrong for humanity to become extinct, incidentally. In fact, its likely to happen as a byproduct of an earlier near-extinction about 70,000 years ago. I don't understand the theory, but apparently by examining the diversity of the human genome, genetists have determined that human population have been as low as 2000 individuals about 70,000 years ago.
We are apparently one of the least genetically diverse species on the planet, and without enough genetic diversity, we are highly vulnerable to being wiped out by infection. Its unlikely we will regain diversity, since our intelligence allows us to change our environment, removing the need to adapt.
 

Hey, you have a great blog here!

Just thought I would check out your blog and say hello to as many people as I can.

I have a cheap computer for sale site. It pretty much covers ##COMPUTER## related stuff.

Come and check it out if you get time.

Thanks again
 

Divorce always hurst somebody. Your blog covering california divorce law in the content was really informative. I have a web site giving information on california divorce law utilising divorce and separation articles. Great work!
 

This is a great article about Kobe Bryant. Feel Free Submit your Articles to Submit Article
 

Jay feels ashamed of his smoking but it’s better that I smoke this and let the dreams of the cigarette workers come true then to be selfish & worry about my lungs.

Merchanting in Runescape is the popular making method. merchanting is mostly a complex and multi-faceted enigma. You can apply the rules of merchanting in the WOW Gold
exchange.
 

Useful information shared..Iam very happy to read this article..thanks for giving us nice info.Fantastic walk-through. I appreciate this post.
aanrechtblad terazzo
 

I have not much time to visit many websites. But today I found this site accidently. I explored much information which is useful to my life. Thanks! Bandar Bola Terpercaya
 

The best gifts come from the heart, not the store.
Agen Judi Online Terpercaya
 

Post a Comment

Older Posts
Newer Posts
Home