The Separate Harms of Reckless Sex

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.