Balkinization: Why Policy Should Pay Attention To First Encounter Sex

Why Policy Should Pay Attention To First Encounter Sex

Ian Ayres

Thank you Instapundit. The New York Times writer, CHRISTOPHER SHEA, saw my earlier post on Criminalizing Reckless Sex, when Glen Reynolds linked to it. And the Times Sunday Magazine included the idea in today's "The Year in Ideas" issue:

Ayres and Baker say that raising a legal obstacle to first-time sex without a
condom would reap benefits for public health. ''The lion's share of sexually
transmitted infections are caused by first-time sexual encounters,'' they argue
on the legal-affairs Web site Balkinization. Moreover, failure to wear a condom
may amount to prima facie evidence of disdain for women: ''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.''

Lots of people reasonably are concerned about the criminalization of sexual expression. But the core of this idea is that society needs to pay more attention to the dangers of first-encounter sex. 45% of all sexual pairings are one night stands. Getting unmarried people to use condoms the first time they had sex with someone else -- no matter what -- might make substantial progress on the fight to control sexually transmitted diseases.

Posted 3:12 PM by Ian Ayres [link]

Comments:

Does this include all the teenagers whose first use would not involve a condom? Is the woman in each case assumed to not have consented? Will the use of a condom be a defense against rape (given the analogy supplied)? What will the proof offered that it was a first encounter or a condom was use? Would we set up a he said/she said (for turn the "innocent" woman against the man?) situation? Will condom use be required now, even if the woman is using birth control, and it truly is a "first time" scenario?

As when this first was suggested, the problems that arise in one's mind are myriad. And, to answer the questions of some of the original post, apparently these guys are serious.

# posted by

Joe : 8:07 PM

What is the citation for the 45% figure? It's not cited in your previous post or (as far as I can tell with a search) in the linked SSRN paper, and I find it extremely dubious. Roughly that proportion of men report having had sex on a first date, ever. Mean sexual frequency is much higher inside marriage than outside. (A few single people have lots of sex with lots of partners, but thye're rare exceptions.) For 45% of all sexual encounters to be one-night stands, there'd have to be an absolutely prodigious number of people with very high total numbers of sexual partners, to outweigh all the sex within marriage and within medium- and long-term non-marital relationships, and that's generally not what the data show.

# posted by

Jacob T. Levy : 8:38 AM

would this require people to keep used condoms from first-time encounters until the statute of limitations from your proposed policy is expired? would it be required for women to wear dental dams if they receive oral happiness?

I could go on, but the question I have is why legislate something like this? protecting people from making mistakes seems like a noble idea, but only succeeds in providing a platform for removing more freedoms later.

here's an idea: instead of legislating protective measures, why not allow the discussion of morality based on religious principles (from a range of religions) as part of sex ed, giving kids more than just a 'wrap it up' lesson.

teach kids that sex can be dangerous physically, and introduce reasons to not have sex. or maybe just be more careful about who they are having sex with.

it's not an endorsement of religion and morality, just an open discussion of sexual mores based on historical record and a variety of viewpoints.

of course, mixing religion and morality into education may seem unpalatable to some, but it's a lot less offensive than a freezer full of scumbags, don't you think?

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