The Mens Rea of “Knocked Up”

Ian Ayres

The movie “Knocked Up” is very funny. I give it two thumbs up. But a week after watching it, it occurs to me that Kathy Baker and I proposed that the initiating act of the movie might be criminal. [Spoiler alert: This post will describe a few aspects of the movie – most of which can be adduced from the title and trailer] Baker and I proposed that there should be a separate crime for reckless sex – under which the prosecution would have to prove beyond a reasonable doubt that the defendant “engage[d] in unprotected sexual activity with a person other than his or her spouse and these two people had not on an occasion previous to the occasion of the crime engaged in sexual activity.”

But our model statute also provided for an affirmative defense if the defendant could prove by a preponderance of the evidence that

“the person with whom the defendant had unprotected sex expressly asked to engage in unprotected sexual activity or otherwise gave unequivocal indications of affirmatively consenting to engage in sexual activity that is specifically unprotected.”

It is pretty clear that a prosecutor could prove beyond a reasonable doubt that the protagonists in Knocked Up, Alison Scott (played by Katherine Heigl) and Ben Stone (played by Seth Rogen), engaged in unprotected, first-encounter sex. It’s also pretty clear that Alison could not be successfully prosecuted because Ben “gave unequivocal indications” that he consented to unprotected sex by participating in the sex act without a condom.

The question is whether Ben would be able to make out his affirmative defense if he were prosecuted under the statute. Ben and Alison had a crucial miscommunication in bed. When Ben in his drunkenness has trouble putting on a condom, Allison tells him “Just Do It Already.” (This may constitute one of the most inappropriate product placements ever). Alison, who is anxious to begin having sex, means that she wants Ben to hurry up and put on the condom. Ben interprets the words to mean that Alison is willing to have sex without a condom.

[It is incongruous that Ben claims the next day that he cannot remember if they had sex (or what Alison does for a living), but later can quote her supposed “Just Do It” consent verbatim.]

If Ben could show by a preponderance of the evidence that Alison told him “Just do it already,” I still don’t think this would establish an affirmative defense. These words are neither an “express” request for unprotected sex nor an “unequivocal indication” of consent to unprotected sex. Indeed, one point of the movie is that the words are equivocal; under our statue the defendant would need more before engaging in unprotected first-encounter sex.

Some reviewers think the Nike line is one of the funniest lines of the movie , but Ben's reaction to it is really a moment when a nice guy makes a reckless mistake. He may be spreading an STD or impregnating an unwilling participant. This is a form of battery, because Alison did not adequately consent to this form of touching.

And while Knocked Up is a truly funny movie, the tragedy of this kind of miscommunication is not funny at all. Indeed, Kobe Bryant in apologizing to his accuser said:

Although I truly believe 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 distance between Alison and this accuser is not as large as we might have first thought.

Few people have embraced our proposal for this new crime. But people like the fictional Stone and the real-life Bryant might have behaved differently if they were held responsible for such miscommunication. Knocked Up also gives further support for the wisdom of the “3 condom rule” that I posted about earlier. By the time a couple has engaged in three acts of protected sex, they are less likely to fall prey to this kind of miscommunication.

By the way, in response to my post on condom advice, many people suggested that using a condom until you are married is the best advice. But a core question is what advice should we give to the substantial number of unmarried women who are using the pill. Approximately 22% of unmarried women over the age of 15 are currently on the pill. What should we tell them about condom use? It's balks reality to think that when these women are in in a serious, long-term relationship that they will demand that their partner uses a condom every time. In fact only about 4.1% of unmarried women are using both pill and condom.
Posted 6:01 AM by Ian Ayres [link]