A Dog Whistle for Rape

Ian Ayres

If Stormy Daniels’s sworn testimony is to be believed, the intercourse that she and Donald Trump engaged in was (1) a first-time sexual encounter, and (2) unprotected.  Katharine Baker and I have argued in a piece published in 2005 (less than a year before Daniels and Trump met at Lake Tahoe) that unprotected, first encounter sex is “reckless” and that it might be appropriate to enact a separate crime for this form of sexual misconduct:

A defendant would be guilty of reckless sexual conduct if, in a first-time sexual encounter with another person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant by a preponderance of the evidence. As an empirical matter, unprotected first-time sexual encounters greatly increase the epidemiological force of sexually transmitted disease, and a substantial proportion of acquaintance rape occurs in unprotected first-time sexual encounters. The new law, by increasing condom use and the quality of communication in first-time sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.

Unprotected, first-encounter sex between Trump and Daniels was (if Daniels testified truthfully) reckless in part because it exposed others – including Melania Trump to potential infection.  Public policies to reduce the prevalence of unprotected first-time sex can reduce the epidemiological force of sexually transmitted diseases because a substantial proportion of sexual pairings never persist beyond an initial encounter.  In analyzing the National Health and Social Life Survey database, we found that 46.2% of all sexual pairings were one-off encounters:

This means that if society could somehow induce people to use condoms in all of their first-time sexual encounters (even if we left unchanged the amount of sexuality and the degree of condom use in subsequent sexual encounters), we would suddenly eliminate roughly half the possible nodes of contact for spreading disease. We might so dramatically reduce the mean number of connections in the population as to render infections unsustainable over time.

Inducing more first-encounter condom use would be particularly effective at reducing STDs because it would specifically target the “superspreaders” – individuals who have sex with many partners and thereby provide connective nodes for infections to spread.  We found that 10 percent of most sexually active people reported having 75.4 percent of the total number of sexual partners. We also found, unsurprisingly, that the most sexually active had the highest proportion of one-time sex.

Reasonable people can oppose expanding the scope of criminal liability.  But a bigger take-home lesson of our article was to show that a policy goal of promoting more condom use during first-encounter sex is laudable.  I’ve separately argued that public health officials should improve messaging on when condom use is advisable.

Preventing STDs was only one reason that we proposed a crime of reckless sex.  We also hoped to make it easier for prosecutors to secure convictions in circumstances where it has been difficult to hold acquaintance rapists accountable due to the difficulty of proving non-consent beyond a reasonable doubt.  The lion’s share of acquaintance-rape is first-encounter unprotected sex.  This does not mean that all or even most first-encounter, unprotected sex is non-consensual.  But it does mean that first-encounter sex is more likely to be non-consensual if it is unprotected than if a condom had been used. 

This is an inference that Trump’s own lawyer seemed to understand.  She argued to the court that allowing Daniels’s testimony that the sex was unprotected was prejudicial because lack of condom use is “a dog whistle for rape” (p. 282) – particularly after prosecution had elicited testimony from Daniels that she insisted on only working a production company that mandated condom use. 

The judge called out defense for failing to object to the condom testimony: 

[T]he mention of the condom. I agree that shouldn't have come out. I wished those questions hadn't been asked, and I wished those answers hadn't been given. But for the life of me, I don't know why Ms. Necheles didn't object. She had just made about ten objections, most of which were sustained. Why on earth she wouldn't object to the mention of a condom? I don't understand. 

Notwithstanding the assertion that Daniels’s testimony contained a dog whistle for rape, the purported encounter would not have been an appropriate basis for prosecution under our proposed statute.  Given her testimony that sex was consensual, Trump would be able to establish the affirmative defense of consent by a preponderance of evidence.  But we should not forget that the unprotected, first-encounter sex alleged by Daniels was reckless in our second sense, in that it unreasonably of increased the risk of STD infection for themselves and others.