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Debate Club
DEBATE CLUB 2/14/05

Can the Law Regulate Reckless Sex?

Katharine Baker and Cheryl Hanna debate.

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Sexually transmitted diseases can't be outlawed, but can the law slow their spread? In a forthcoming article in the University of Chicago Law Review, Ian Ayres and Katharine Baker propose adding the crime of "reckless sexual conduct" to the books. Citing data that shows that STDs are transmitted with disproportionate frequency the first time two people have sex, Ayres and Baker argue first-time intercourse without a condom should be punishable by putting the perpetrator in prison for three months.

But critics are skeptical about the ability of the proposed law to deal with a range of issues, from consent (What if a woman insists a man not use a condom?) to privacy (How will courts avoid the he-said/she-said problem that plagues rape prosecutions?).

Can the law regulate reckless sex?


Katharine Baker is Professor of Law and Associate Dean at the Chicago-Kent College of Law. Cheryl Hanna is Professor of Law at the Vermont Law School.

Baker: 2/14/05, 09:18 AM
Good morning. I thought I'd start off Monday morning by stating the obvious—sex is fun—and the not so obvious—sex is dangerous. We don't like to talk about it much, but, in fact, sex can be really dangerous. Unprotected sexual encounters bring with them the risk of acquiring serious, sometimes deadly, often life-altering disease. Sex is also emotionally dangerous because when consent is ambiguous, one person's fun sex can be his partner's frightening rape. We believe our statute can greatly reduce the risk of both of these dangers, but because space is limited and people may have other things to do with their Monday morning, let me just focus on the STD problem today. The risk of STD transmission is virtually eliminated with condom use. Therefore, our statute mandates condom use in first time sexual encounters unless both parties agree to unprotected sex.

To some, we realize, any regulation of sexual activity seems abhorrent—a paternalistic, moralistic government intrusion into people's autonomy and freedom. Let me take a minute then to describe just how unlikely it is that this statue will be particularly burdensome and how possible it is that this minimalist regulation could nonetheless reap huge benefits. First, the only sexual activity the statute regulates is first time sexual encounters, which we define as the first time two individuals engage in sexual activity that includes penile penetration. Once you've done it once, you are free to do whatever you want. Second, the average person in the United States has sex with seven to nine partners over the course of a life-time. The majority of people already use condoms in first time sexual encounters and the vast majority of people aspire to condom-use in first-time sexual encounters. Thus, the statute is likely to be effecting a change in, on average, 3-4 events in people's lives and it is a change that most people aspire to anyway.

The epidemiology tells us that this minimalist intrusion could reap huge benefits because those few people who have incredibly diverse sex lives ("frequent flyers," as they've been called) serve as conduits for disease, spreading it from and to every community with which they come into sexual contact. Frequent flyers are a real problem in our culture. Ten percent of the most sexually active people report having 75.4% of the total number of sexual partners. If our statute could induce all frequent flyers to use condoms in first time encounters, we might well eliminate the spread of STDs. That, we think, is a goal well worth achieving, even at the cost of regulating a tiny part of most peoples' sex lives.

Hanna: 2/14/05, 12:03 PM
Happy Valentine's Day! It's a perfect time to discuss love, romance, and the limits of sexual freedom. It's clear we both care about the same thing. Ideally, sex should always be both safe and consensual.

Yet, I fear your proposal criminalizing "reckless sexual conduct" will do more harm than good. Let's be honest. As a practical matter, even though some would prefer the sex police patrol our backseats and bedrooms, these cases will likely only come to the attention of law enforcement if someone feels as if she or he was victimized and reports it.

Most of these reckless sex cases are, in truth, going to be what's known as date or acquaintance rape. As a former D.A., I understand how hard these cases are to prosecute. The majority involve a he-said/she-said scenario. Absent bruises or other evidence that force was used, juries are reluctant to convict. Victims know this, which is one reason why acquaintance rape is vastly underreported.

Your proposal would allow prosecutors to charge "reckless sexual conduct" regardless of evidence of force. It's arguably easier to prove than rape. Indeed, isn't this really a primary motivation for your statute?

But I worry about prosecutors taking the easy way out even in cases that warrant a rape charge. And you still don't get past the he-said/she-said dilemma because, under your proposal, consent is a defense. He says she said it was ok to penetrate her without a condom, she says she said it wasn't. Its unlikely juries will convict in these cases either.

Furthermore, under your proposal, victims face a real dilemma. Assume you're on a Valentine's Day date with Mr. Frequent Flier, whom you've recently met. After dinner and a few drinks, you find yourself either very ambivalent about having sex, as is so often the case in first time sexual encounters, or forced to do so, fearing for your safety. Should you ask "FF" to wear a condom? If you do, and he agrees (maybe eagerly, knowing condom use is a prophylactic against criminality responsibility), you can't charge him with reckless sex, and the condom use itself will be seen as evidence of consent in a rape trial, although you're protected from STD's and possibly pregnancy. If you don't, you may be able to bring a "reckless sex" or rape complaint, but put yourself at physical risk. In either case, the law does little to protect either your physical integrity or your sexual autonomy.

In practice, your proposal isn't likely to reduce the spread of STD's or communicate that yes really means yes. Rather, it gives the government unwarranted intrusion into our private lives and communicates the wrong message concerning what's really reckless about sex.

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Baker: 2/15/05, 09:11 AM
Good morning. You jumped right into the rape stuff, so I will too. You raise important points about how our statute will affect the "on-the-ground" enforcement of rape laws. First, when confronted with an unprotected incident that a woman claims is rape, you suggest that prosecutors will take the easy way out—and move for a reckless sex conviction instead of a rape conviction. Second, you are concerned that a woman who was ambivalent about sex, but nonetheless consented to condom use, will have a decreased likelihood of securing a rape conviction. I'm not particularly worried about wimpy prosecutors. Most prosecutors always want to get the strongest conviction they can get. More important, I think any prosecutor who would opt for the easy way out under our statute would forego prosecution altogether without our statute. The fact is we have yet to convince many people that acquaintance rape really is rape. Some of the people we have not convinced are prosecutors. Some are jurors whom the prosecutors know they must persuade. In an iffy case today, a prosecutor who does not believe that the case really is rape, or does not believe that a jury can be so convinced, is not going to bring the case at all. Our statute creates a new (albeit lesser) category of moral wrong so that people who are still not convinced that acquaintance rape is "that bad" can still call it bad and get some conviction.

As for the concern that the woman who consents to condom use will be decreasing her chances of getting a rape conviction, legislatures and juries have rejected this idea. Texas had a famous case in which one grand jury originally opted not to indict a man for rape because of the victim's request for condom use. After public outrage, prosecutors brought the same facts before a new grand jury. The man was indicted and eventually sentenced to forty years in prison. California and Florida both have statutes preventing jurors from finding that condom use, by itself, constitutes evidence of consent. Thus, if there is no other evidence of consent except condom use, our statute will not make the prosecution of your Frequent Flier any harder. Don't get me wrong: A successful rape prosecution of Frequent Flier will still be very difficult, as it is today. But I think your hypothetical proves that our statute will be doing more good than harm because by making it more likely that the parties will use a condom, we will diminish the spread of STDs and unwanted pregnancy, while not aggravating the already very difficult task of proving non-consent beyond a reasonable doubt.

Hanna: 2/15/05, 06:36 PM
Good afternoon! I appreciate your thoughts on how your proposal will actually work and applaud any attempt to get prosecutors and juries to take sexual assault cases more seriously. But I'm convinced this statute will hurt women in the long run. (Hopefully in future exchanges we'll debate the impact on the gay and lesbian community, but for now I'll focus on heterosexual sex.) Despite some very modest law reform in this area, your proposal reinforces, and indeed promotes the idea that condom use means yes. In the long run, women will be at greater risk for sexual assault because the focus will now be on condoms instead of consent. This encourages ambiguous or non-consensual sex. You seem willing to trade sexual autonomy for a hypothetical reduction in the spread of STDs. That's not a trade-off I'm willing to make.

There's something else that concerns me. As I interpret your proposal, only men could be held criminally culpable for failure to wear a condom. That's rooted in outdated notions that women aren't fully responsible for their sexual decisions. I'm reminded of the 1848 Women's Rights Convention at Seneca Falls at which our fore-sisters demanded the right to be held responsible for their crimes. They understood that along with responsibility comes equality.

One reason a woman may find herself ambivalent or threatened by a first time sexual encounter is that she don't feel empowered to say no. She may believe she owes it to him because he bought dinner, he'll reject her if she doesn't put out, or that everyone's having casual sex, so she should too. Excusing her from the responsibility of unprotected sex only reinforces her powerlessness. It also sends the wrong message that sex isn't reckless if you use a condom. I'd argue that having sex for the wrong reasons is what's really reckless.

The best way to curb the spread of STDs is to have a meaningful conversation about your relationship, get tested, and still use a condom. Men and women have to be equal partners in that dance of intimacy. To that end, both partners have to bear responsibility for unprotected sex. If women knew that they too could be held criminally liable for unprotected sex, they'd be much more empowered to say no if that's what they really want. Don't get me wrong. I'm not advocating for an expanded version of the law, but pointing out that the underlying assumptions in your proposal don't do women any favors.

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Baker: 2/16/05, 11:52 AM
Good morning. I think we're getting stuck on a couple of different points. First, we are in no way saying that condom use means yes to sex. We are saying that condom use means no recklessness. Because they protect against disease and because they require deliberation, condoms make it much less likely that people will recklessly engage in sexual intercourse. People may still engage in sex for silly, unfortunate and less-than-lovely reasons. Indeed, I am quite certain that for the foreseeable future women will continue to feel pressured into sex, to consent to sex that they do not want, and to have sex for reasons that will seem, in retrospect, ridiculous. But unless their consent is coerced, these women are not rape victims (or victims under our statute). We do not pretend, nor would we want to suggest, that a woman who says yes to sex just because the guy paid for dinner is a victim of a crime. Though personally I think we should address the underlying causes that make such a woman feel obligated, she has no legal remedy. The only remedy she might have under our statute that she does not have now is the right to proceed with a prosecution if the man refused to wear a condom. But, if she consented to the absence of a condom when she consented to the sex, the man isn't guilty under our statute either.

Furthermore, women can be criminally culpable under our statute. If a man alleges that his partner wanted to proceed without protection and he did not so consent, she may be guilty under our statute. The problem, of course, is that the physical fact of penetration on his part will probably give her the consent defense that she needs. Absent a kind of gun-to-the-head scenario, she is likely to have an easy time proving—just from the very fact that intercourse happened—that he did consent to reckless behavior.

We considered drafting a statute that would have made both parties to an unprotected first time encounter automatically and equally culpable—consent to recklessness could be irrelevant for all purposes. This would provide the gender equity that you seem to want. The reason we opted against such a strict regime is twofold. First, one party's consent to recklessness does, in our mind, mitigate the culpability of the other party. Our statute protects sexual autonomy more than would a strict liability regime because it allows both parties to opt into recklessness if they so choose. Second, and more important, a strict liability regime would likely eliminate the precious few acquaintance rape charges that currently do get brought. A woman who was a victim of unprotected acquaintance rape would not come forth with the very-difficult-to-prove rape charge because by doing so she would be automatically subjecting herself to the strict liability penalty for reckless sex. In order to give victims of acquaintance rape a voice, we had to provide them with a safe haven in which they could allege that unprotected sex happened.

Hanna: 2/16/05, 07:27 PM
Hello! You're right. We're stuck on the issue of whether condom use implies consent. I know that's not your intention. But the proposal unintentionally sends that message. And I'm far less optimistic than you are that this statute will actually protect women. So let's agree to disagree and move on!

Today I'll put on my libertarian hat and discuss the dangers of government regulation of sex and reproduction. Let me be clear: I'm not a "capital-L" libertarian. There are some areas in which regulation is necessary. Incest, sex with minors, polygamy, and the use of extreme physical violence, for example, are all areas most people believe are appropriately regulated. But the right to privacy is so fundamental that only under the most compelling circumstances should the government be allowed to throw someone in jail for their private sexual conduct.

Frankly, I'm not concerned about the government "intruding" into the lives of women who've been coerced into sex. We both agree the government should do more to hold rapists accountable. You already admit your law will be hard to enforce because of the thorny issue of consent. So what good will it do?

Historically, laws regulating sex and reproduction have been used as tools of oppression. For example, by 1935, more than 20,000 people were sterilized in this country to prevent what the government called "feeblemindedness." Most of those sterilized had no mental disability. Rather, they were poor and unpopular.

More recently, the state of Texas argued that its law criminalizing homosexual sodomy was justified because the law's intent was, among other things, to prevent the spread of STDs, particularly AIDS. The Supreme Court struck down that law, rejecting the government's argument that the spread of disease justified criminalizing someone because of their sexual orientation.

I know you'll say these are extreme examples and your statute doesn't infringe much on people's sexual autonomy, but believe me, there are plenty of law enforcement officials in Texas and elsewhere who can't wait to see your law passed. It'll give them an excuse to, once again, go after the gay community.

"But consent is a defense," you say. I hear you, but tell that to the openly gay person who was targeted by a bigoted police officer, arrested, and held for two weeks before being released. Nor should we forget that minorities are disproportionately represented in the criminal system. Do we really need another law that can be used to lock up black men?

Furthermore, condoms are birth control. Any government mandate that birth control be used is a form of eugenics—a mild form, yes, but most certainly a baby step down the road to totalitarianism. That's not a turn I'll take unless you can prove your proposal will save lives. I have yet to be convinced.

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Baker: 2/17/05, 01:35 PM
Belated good morning. I'm glad you raised the impact of our statute on the gay community. It's an important issue, but I want to clear a couple of things up front. Lesbians won't be affected at all. The only sexual activity regulated is penile penetration (and we do that because penile penetration poses a much greater risk of STD transmission than do most other forms of sexual activity). Gay men will be affected, though, and they will be affected more, on average, than straight men or women because gay men have, on average, more partners than straight folks. Gay men also may be the key beneficiaries of more ubiquitous condom use in first time encounters, however. (Have you seen the recent data from New York City on a new, more virulent strain of HIV that has, to date, only affected gay men?) Because gay men have more partners, they have more first-time encounters and more of those encounters are likely to be one night stands. The epidemiological equations are a little complicated, but, simplifying, the data shows that if we could induce condom use in 100% of one night stands we might well render STD infections unsustainable over time. We don't think our statute would induce 100% condom use in one night stands, but even a 50% increase could go a long way towards eliminating what can be devastating disease. (By the way, because women are more vulnerable to infection and because, if infected, women are more likely to be severely injured by STDs, women stand to gain substantially from more protected sex.)

While sensitive to the oppression that gay men have suffered in the past, I am not at all worried about overzealous law enforcement officials in Texas or anywhere else. Who would bring the charges? If the parties thought for a minute that they were the subject of a gay witch hunt (the sheriff bursting in on a consensual endeavor?) all they would have to do is say that the unprotected sex was consensual. Do you really think a straight male cop would be so homophobic that he would approach a gay man, claim to want unprotected sex, engage in homosexual unprotected sex and then turn around and prosecute, claiming he didn't consent to the lack of protection (but that he did engage in the sex)? In addition to straining all credulity, this is entrapment.

Finally, before signing off, let me clarify one other point. I did not say that our statute will be hard to enforce. It will be incredibly easy to enforce if charges are brought right away. Recovered semen will proof of unprotected sex. The hard part may involve the accused trying to prove consent.

Hanna: 2/17/05, 05:54 PM
Hello!

Have you been to Texas?

True, government abuse isn't likely to be widespread, but it's naive to think it won't happen. We shouldn't be willing to expose anyone to those dangers unless we're certain your law will have the impact you claim. Any student of human nature can tell that you it won't.

The underlying assumption you make is that this law will change how we humans behave. Yet, laws regulating sexual activity have had little success. Laws outlawing adultery never stopped cheating, and laws forbidding prostitution certainly haven't shut down the sex industry. Sex is our most basic human instinct. It's so fundamental to our existence that even the most repressive of laws won't curb our desires.

For the law to act as a deterrent, people have to be rational actors who can weigh the costs and benefits of their decision. When it comes to sex, however, our passion over-rides our reason. Two people in lust aren't thinking about jail when the lights go down for the first time. They're often not thinking at all.

If the very real threat of contracting a virulent strain of HIV doesn't deter someone from unprotected sex, do you think the very remote possibility that their partner will turn them into the police will?

The law already addresses male resistance to condom use. If she says no condom, no sex, and he proceeds to penetrate her anyway, that's rape, plain and simple.

It's silence about condom use that's really the problem. Yet under your proposal, silence must constitute consent. Otherwise, you'd hold both strictly liable for not wearing a condom—a scheme you reject as would the Supreme Court.

If you really wanted to make sure people were rational and talked about condom use before they had sex, you'd outlaw alcohol. Just one martini can compromise your ability to have safe and consensual sex. In fact, as many as 80% of college students—men and women—who've had unwanted sex were under the influence of alcohol. Yet, our desire for drink is almost as strong as our desire for sex. Prohibition failed and so, too, will your proposal.

I understand you're trying to arouse our reason before our passion puts us in harm's way. It's an admirable goal. But introducing a new law is a poor way to get and keep our sexual attention.

Raising awareness and educating people about the very dangers your proposal seeks to prevent is a far more effective way to go. I'd rather see all resources you'd devote to the passage and enforcement of this law instead spent on education and free condom distribution. That's the best way to ensure informed consent and remove the danger of the government unnecessarily intruding into our private lives.

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Baker: 2/18/05, 11:06 AM
Cheryl—I find your insistence on certainty curious. You say we shouldn't expose people to the risk of over-enforcement unless we are certain our law will have the impact we claim. Should we take the same approach to all acquaintance rape regulation? After all, in the last 30 years we have come up with numerous less aggravated forms of rape, all in the name of trying to curb acquaintance rape, but they are forms of rape that are easier to prove and therefore more subject to government abuse. We are also not certain that they will achieve their desired goal.

Indeed, I find your whole "sex is irrational" argument inconsistent with rape reform efforts. Your arguments have been used for years to suggest that rape can't really be stopped. The idea has been that we are stuck with male sexual aggression because the sexual urge in men is hard-wired and irrational. We'll have to agree to disagree about this too, because if I agreed with you that we can't ask people to curb sex urges, I would cease writing about potential ways to change dangerous male sexual aggression.

As for the incentives already in place to inspire condom use, you are right, if SuperAIDs takes off, condom use may rise again, as it did in the late 1980s and 1990s, but the fact is that right now, condom use is declining. As our antiviral drugs have gotten better and better, people have come to see AIDS as something that can be tolerated. Moreover, AIDS is not the only STD. People may ask their partners about having been AIDs-tested, but do they ask about everything else? The risk of getting other STDs appears to be significantly undervalued in our population, as are the consequences of getting STDs. One in six men aged 15-49 have genital herpes. Five million new cases of genital warts are diagnosed each year. One scholar has concluded that the number of undiagnosed STDs exceeds the number of diagnosed cases. By some estimates, 25% of teenagers carry STDs. Part of the problem here is that people have been so reticent to talk about sex and its consequences that they allow themselves to remain ignorant of sex's dangers. Maybe people would be a lot more rational if they knew more facts.

Again let me be clear about the consent issue. Silence doesn't mean consent. The defendant must prove unequivocal signs of consent to make his defense. That hardly makes the statute a strict liability one affecting both parties equally. Nor does it make it make it a stict liability statute applying to men only. The accused has an opportunity to prove consent, and he only has to prove it by a preponderance of the evidence.

By the way, I have no disagreement about the likely positive impact on the incidence of rape if we banned alcohol, but banning alcohol would be a vastly more drastic measure than requiring condom use only in first time sexual encounters. Our law is a reasonable, direct, and limited response to a serious social problem. The only people significantly effected are those who are most likely to inflict harm or have harm inflicted against them.

Hanna: 2/18/05, 05:36 PM
Good afternoon. I am not arguing that we should do away with laws regulating rape, whether committed by a stranger or an acquaintance. The risk of unwarranted government intrusion or abuse is justified by the seriousness of the offense, and the need to protect women, in particular. You and I would agree rape laws are effective in curbing dangerous male sexual aggression and stringent enforcement of those laws is necessary to get sexual predators off the street.

However, I don't equate condom-less sex with dangerous male sexual aggression. While failure to wear a condom increases the spread of disease, it doesn't rise to the level of a moral harm that justifies prison. It may be really, really stupid, but it shouldn't be illegal.

I'm even more uncomfortable with your proposal since you've stated silence wouldn't constitute consent. Silence is the problem! Women and men have to speak up and take charge of their sexual destiny. Absent the use of force or coercion, it's reasonable for someone to assume that if his partner says yes to sex but says nothing about using a condom, he or she is consenting. It's unjust to make someone a criminal because he can't read his partner's mind.

And you misunderstand my argument about human nature. I don't believe men are hard-wired for aggression anymore than I believe women really want to be raped. However, I am suggesting that a law mandating condom use isn't likely to be effective because people, in the heat of the moment, aren't thinking at all, or think "it won't happen to me." Also, for many people, both men and women, the pleasure of unprotected sex often outweighs the pain of possibly contracting an STD or conceiving an unwanted child. I'm not advocating unprotected sex. But it's unrealistic to think this law will get people to cool off and consider the consequences.

That said, your proposal certainly has people talking about STDs and condom use! I'd hate to see our debate obscure the central concern we both have that all sex be consensual and as safe as possible. You've made a very persuasive case that people should wear condoms, especially during first time encounters, and educated readers to the wide-spread and growing dangers of STDs, including the drug-resistant strain of HIV. As I said yesterday, raising public awareness is the key to changing people's behavior. If our exchange encourages people to take responsibility for their sexual lives, to communicate clearly with their partners, and to protect themselves against disease, then it's been certainly been worthwhile. I'm grateful to you and the Legal Affairs Debate Club for the opportunity to engage in this discussion.

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