Tuesday, February 08, 2005

Typical from a Yalie Prof

This is one of the dumbest ideas I have read about in a long time

Professors Make a Case for Criminalizing Reckless Sexual Conduct

Los Angeles Lakers star Kobe Bryant has steadfastly denied allegations that he raped a 19-year-old woman in 2003 at the Colorado resort where she worked.

Bryant has acknowledged having unprotected sex with the woman, but has maintained all along that the sex was consensual.

Whether it was or not, two law professors say that what Bryant admits to doing in his hotel room that night—having unprotected sex with a woman he had known for less than two hours—was both reckless and dangerous.

So they wrote an article for The University of Chicago Law Review proposing a new law designed to curb such conduct by criminalizing first-time sexual encounters between unmarried people who do not use a condom.

This is going off the deep end of trying to legislate what goes on in the bedroom.

The proposed new crime, which the two professors call reckless sexual conduct, would be punishable by a fine and up to three months in jail.

To convict, prosecutors would have to show beyond a reasonable doubt that a first-time sexual encounter occurred between the accused and the alleged victim, that the couple were not married to one another and that no condom was used. The accused would then have the opportunity to prove, by a preponderance of evidence, that the alleged victim consented to having unprotected sex.

The two professors—Ian Ayres of Yale Law School and Katharine Baker of Chicago-Kent College of Law—argue that such a law would promote public health and help reduce the tragedy of sexual coercion.

"Simply put, our goal is to promote condoms and communication for first-time sexual encounters," Ayres says.

Studies show that the lion’s share of sexually transmitted diseases is the result of first-time sexual encounters. And almost all of these diseases could be prevented, Ayres and Baker say, if condoms were used.

Well duh... of course they are from first time encounters. And if you wear a condom the first time encounter and don't for the second time, then the lion's share will come at second time encounters...

The reason there is few second time encounters when an STD is passed is because who is going to have sex a second time with someone who just gave them the clap? An extreme burning sensation when you pee would be a good reason not to go out on a second date... But maybe I'm just silly that way.

And what about those second or third time encounters. What if you haven't seen the person in 10 years? Is it a first time encounter again, or 43? What about homosexuals? Wouldn't it just be easier to make it illegal to give someone an STD at any encounter? And why do married people get off the hook? What if the first time a man and woman have sex with each other is on their wedding night?

Unprotected first-time sexual encounters also are correlated with coercion, the two professors contend. Few men careful enough to use a condom, they say, are reckless enough to rape. And the same recklessness that causes men to overlook the risk of disease and pregnancy can lead them to overlook whether the woman has truly consented to having sex, they say.

This is dangerous because by inference, if a man does use a condom, he did not coerce a woman into having sex. "Your honor, I could not have raped her... I used a condom."

Giving men a new incentive for wearing a condom in a first-time sexual encounter should significantly reduce both the risk of sexually transmitted diseases and the tragic lack of communication that often gives rise to the illusion of consent, the two professors argue.

This makes the woman the eternal victim in society and puts the entire legal burden on the man. Why is it only the mans responsibility to use protection. And as for the intent of the law, reducing STDs and unwanted pregnancies, it doesn't have equal protection. If a man gives a woman and STD, he can go to jail for having unprotected sex. If a woman gives a man an STD, there is no ramifications for her actions. In fact, the man could still go to jail, even if he is the recipient of the unwelcome surprise.

In addition, the professors say, the crime of reckless sex also would be a powerful prosecutorial tool for the thousands of acquaintance rape cases that are simply not winnable under current law.

The proposed new crime would not replace current rape laws nor immunize men who commit rape with condoms from prosecution under existing law, the professors insist. Like DUI laws, however, the proposed new crime’s very existence would send a clear message that society considers reckless sex both physically and emotionally damaging.

"A crime of reckless sex, by encouraging people to protect themselves and their sexual partners, can encourage deliberation and communication in ways that promote public health and greatly reduce unnecessary and damaging sexual violence," Ayres and Baker write.

Maybe public awareness and education is a better tool. Condom use is much higher now than it was 30 years ago...

But the article goes on to reiterate some of the same issues, so read on.

Their proposal, which was first floated last September on a legal affairs Web site, drew dozens of comments, most of them negative.

"You’re joking … right?" one person wrote.

"This is one of the stupidest things I’ve ever read," wrote another. "How about a law against shaking hands without gloves?"

Criminal defense lawyers aren’t much kinder.

Miami lawyer Neal Sonnett, a past chair of the ABA’s Criminal Justice Section, says he thinks the proposal would create bad constitutional law and bad social policy.

"Notwithstanding the good intentions of these two professors, this is not something that ought to be regulated by criminal statute," he says. "If the concern is acquaintance rape, we already have statutes on the books to deal with that."

Some academics express mixed feelings about the proposal.

Georgetown University law professor Paul Rothstein says he sympathizes with what Ayres and Baker are trying to do. Rape cases are inherently difficult to prove. And unpunished rapes are a big social problem, he says.

Rothstein says such a law would be difficult to enforce. And it might also be unconstitutional under the U.S. Supreme Court’s 2003 holding in Lawrence v. Texas, 539 U.S. 558, which struck down a Texas anti-sodomy statute on the grounds that it represented an unwarranted intrusion into the privacy of the bedroom, he says.

Rothstein says the proposed statute presents other potential problems. It does not seem to treat men and women equally and appears to represent a return to paternalism toward women. "It presumes women are more sensible than men, and always insist on a condom," he says.

Such a statute also could be abused by an overzealous prosecutor with a political agenda, Rothstein says. "I can see the whole machinery of searches and seizures, subpoenas, taking witness statements, searches of computers and letters, electronic eavesdropping, grand jury inquiries, in order to gather evidence of first-time encounters and unprotected sex," he says. "Talk about a state intrusion into the privacy of the bedchamber. Should public money be expended this way?"

But Ayres says a crime of reckless sexual conduct would be a lot easier to prove than rape. He also says the proposed statute is a minimally intrusive means of guarding against the documented dangers of unprotected sex. And the risk of potential abuse would be limited by the fact that a prosecutor would need a complaining accuser to bring a case and by the fact that a defendant could protect himself simply by using a condom.

Yet even some prosecutors express reservations about the wisdom of such a law.

"I think it’s a laudable social goal," says Clatsop County, Ore., District Attorney Joshua Marquis, who serves on the board of directors of the National District Attorneys Association, "but making it a crime may be a little bit of a reach."

Rape charges against Bryant were dropped last September after his accuser told prosecutors she was unwilling to testify against him. However, the alleged victim’s civil suit against Bryant is still pending


Smoke Eater said...

Oh man, are these the people I'll have to eat lunch with when I finish my JD or are there actually lawyers out there (more than 2 please for conversation) that USE THEIR BRAINS!

Sigmund, Carl and Alfred said...

An absolute idiot.

I could go on, but I'd dilute that truth.

He's right up there with Chutch.

Boomr said...

Seriously, how can someone advocate abstinence-only sex education, drastically cut funding for treatment facilities for those most at risk for contracting sexually transmitted diseases, propose a "reckless sex" law, and claim he's not ruled completely by religious dogma?

This is morality legislation run entirely amok. While couched in terms of a threat to public health, the law's aim is actually to enforce a religious agenda on those of us who don't necessarily believe in that aspect of religion. It's filled with holes, and replete with discriminatory intent.

First, let's look at the elements of the crime: (1) first-time sex, (2) between unmarried people, and (3) no condom used. These are the only elements to the crime. What if both parties to this encounter had medical evidence showing each had recently been tested for STDs and received a clean bill of health? Still convicted -- or at least the burden of proof shifts to the defendant, which by itself violates the constitutional protections against self-incrimination and violates the mandate that the prosecution prove the defendant's guilt beyond a reasonable doubt. Lack of consent should, at the very least, be an additional element of the prosecution's case.

Second, it's fundamentally discriminatory against men, like Dingo pointed out. It takes a paternalistic view of women, erring on the side of considering women to have a complete lack of control over their sex lives. It also places the entire burden of providing prophylactics on the man, and completely absolves women of any wrongdoing, even if the woman had criminal intent to spread disease.

Third, and probably most importantly, it's going to be extremely racially discriminatory. The one group of people most at risk for contracting STDs is inner city minorities, where poverty and cultural concerns severely hamper a man's ability to purchase protection against STDs. That group is also the most likely to come under police suspicion for other crimes, and this new law would just make it easier to put more and more black and brown people in jail.

One of the legal tenets of constitutional law is that any restriction of liberty has to be "narrowly tailored" to a legitimate purpose of the government. This proposed law is so far afield of protecting the public health that it would never pass a constitutional review of its tenuous connection to the stated government purpose. Pure and simple, it's a law intended to enforce the Judeo-Christian prohibition of sex out of wedlock.

What a waste of public resources.

MaxedOutMama said...

I am awed. Dingo, you have found one of the most stunningly stupid suggestions of the decade, from law professors yet.

In our country, the mutawi have law degrees. This is an attempt to install a secular utopian society no different than than trying to enforce religious rules rules of conduct, most of which evolved for the same reason. A free society should reject this type of reasoning - and if we want to be some sort of religious republic, I think a more time-tested version would be in order.

And the "first-time" bit is whacked, as you point out. I have a better idea - just make them wear a scarlet "C" so everyone knows they've been sleeping around and may be contaminated.

For that matter, why does anyone think this would be a deterrent? Let's face it - a women having unprotected sex with a professional athlete ought to know she is risking her life from AIDS. If fear of death won't deter this conduct, why would fear of a prison term?

What twirps.