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Finally, some legal analysis

Some of you might have been wondering when I'd ever touch on subjects legal here again. Well, how's this: you get both law and sex in the same post.

Will Baude and Peter Northup are both debating the wisdom of a proposal by Professors Ian Ayres and Katherine Baker. Basically, the two professors want to reduce STD transmission and acquaintance rape:

This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular 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 with a preponderance of the evidence. . . .

Baude spends quite a lot of time discussing (or edging around) sexual positions and the difficulty of establishing consent. Northup counters with this eminently reasonable idea:
We are therefore only dealing with cases where only one person has consented (if both had, we wouldn't be having a trial), and the only question is which one. The preponderance of the evidence standard means that if the woman can establish that the probability she consented is <50%, the probability the man consented must be >=50%, conditional on someone consenting. Thus showing that you probably didn't consent immunizes you from prosecution for RSC. Hence, in all the cases we are concerned about, there is essentially no risk of the statute backfiring and deterring victims from coming forward--or at least, a much lower risk of backfiring than the current risk of emotional/reputational damage from participating in a criminal sexual assault trial.

Which is true, as far as it goes. My trouble with the proposal is that it wants to impose a 'preponderance of the evidence' standard upon the defendant. He must prove, beyond a preponderance of the evidence, that consent was given not to use a condom. Ayres and Baker's support for this seems to me to be flaccid... if you'll excuse the pun.

Their policy argument basically runs thus:

The affirmative defense afforded defendants is amply supported as a matter of public policy. First, as discussed above, this defense gives women who are the victims of non-consensual sex more freedom to come forward and report the crime to police. Second, the difficulty of proving non-consent beyond a reasonable doubt makes the re-allocation of the burden more appropriate. Indeed, the state of Washington already allocates the burden of presenting and proving the issue of consent to the defendant in (far more serious) rape cases. Third, putting the burden of proving non-consent on the prosecution in cases involving unprotected first encounter sex would encode in the law a presumption that women willingly put their physical and emotional health at extreme risk. It would assume that women act recklessly unless the prosecution can prove otherwise.

(citations omitted) This is subject to a number of objections. First, the Professors mention only in a footnote that for the crime of rape, Washington requires proof of consent as an affirmative defense, but requires proof of forcible compulsion. This is hardly the same as criminalizing conduct where the sex itself was consensual, but not the condom usage. (Because if the sex itself weren't consensual, then the crime would be rape.)

But more important is the Professors' third assertion, that putting the burden of proof on the prosecution--to prove a lack of consent beyond reasonable doubt--somehow encodes a presumption of recklessness to women. Well, no. Actually, it just places a presumption of recklessness on a lot of sex acts, and that's probably a reasonable assumption. Let's put it this way: do you really believe that of all the initial acts of condomless sex in the country--which the Professors rightly point out is risky--the predominant number of them are acts of coercion? I'd at least want some statistical backing for this, and it would have to be pretty solid. Because otherwise, the presumption that women will put themselves at risk if the right payoffs are there--be they matrimonial potential or merely good sex--would seem to be a pretty good presumption. But Professors Ayres and Baker have replaced the Reasonable Man standard with one of the Eminently Sensible Woman.

Worse, the Professors' solution seems to be an end-run around Patterson v. New York (432 U.S. 197), which places the burden of proof on the prosecution to prove all elements of the offense beyond a reasonable doubt. They make a rather tepid effort to distinguish this by stating that what they're criminalizing is first time unprotected sex, not non-consensual sex:

We think there little doubt [the proposed statute is constitutional] for one simple reason: Our statute does not criminalize what rape statutes criminalize. Our statute criminalizes unprotected sex. Rape statutes criminalize nonconsensual sex. . . .It would be perfectly possible to be guilty of rape, but not guilty under our statute.

But is it? Let me go out on a limb here and say that this is the affirmative defense that eats the crime. I think it's safe to say that the vast majority of first-time sexual encounters that do not involve protection are consensual on both sides. By adding the affirmative defense, the the proposed law makes the real crime the lack of consent, not the condomless activity. Otherwise, you'd criminalize the vast proportion of it. [1]

Here, the Professors run smack into Justice White's Patterson opinion, because for that the prosecution must bear the burden of proof beyond a reasonable doubt. The professors show their true colors a few paragraphs later:

We have included a defense of consent both because, somewhat counterintuitively, it makes it more likely that acquaintance rape will be prosecuted, and because consent qualifies the perceived egregiousness of the defendant�s behavior.

But of course, if the authors are being honest, it will not make it any more likely that acquaintance rape will be prosecuted. Rather, it makes it likely that "reckless sexual conduct" will be prosecuted--because that's the crime that's going to be charged. The authors wish to use that net to catch quite a few rapists which they feel are being unpunished. Which is fair enough, but precisely the kind of procedural jiggery-pokery that Patterson sets out to prevent.

(update) The second justification for the affirmative defense turns upon the purely bizarre. Read the last bit of that sentence again: consent qualifies the perceived egregiousness of the defendant�s behavior. But does it? If the crime is really reckless sexual behavior, then if the 'victim' of the crime consented, they are by definition another defendant. They too engaged in consensual reckless sex, although they share the same defense. Somehow, two people engaging in reckless conduct likely to bring them into contact with STDs--the ostensible purpose for the law--are somehow less culpable?

In any event, you can't fault the Professors for putting forward a provocative article. But in the real world, I think their statute gets struck down pretty quickly.

Update: As I keep considering this proposal, the unique nature of sex and the uniquely one-sided nature of the articles assumptions make me wonder how it would fit in with the rest of criminal law. For instance, if both parties set out to commit reckless sexual conduct, even with them both consenting, can they be charged with conspiracy, even if they might not be guilty of the underlying charge? I'll admit, conspiracy was never my strong suit.

[1]: And if it is possible for one to be guilty of reckless sexual conduct without being guilty of rape, it's difficult to see how: these would be cases in which... what? The woman said, "Yes, honey, but only with a condom... no... oh, well, ok yes"? Simply put, the mind boggles. I can see how it would be easier to prove the facts for RCA than for rape, but under any given set of findings that would support a RCA conviction, I can't think of how you wouldn't get some kind of sexual assault.


Listed below are links to weblogs that reference Finally, some legal analysis:

» Two Nights, Ten Hours of Sleep from Half the Sins of Mankind
Oh, a substantial criticism of this foolishness? Hmm. Perhaps someone who's actually taken Criminal Justice already. [Read More]

» Quick! Ian Ayres from De Novo
I promise to link and edit this properly later, but I wanted to post the first draft and let people react if they liked. Report from Ian Ayres's (of "Reckless Sex" infamy, though for some reason that article was not... [Read More]


Something struck me about all of this. What happens in cases of sex where neither participant knew about either STD's or Condoms? This isn't by any means ridiculous. Sex education is patchy and many parents choose to withdraw their children from it on moral grounds. This does not however make their children any less horny. So Billy Bob and Sarah Jane get it together one night, both consent, both are over the age of consent and neither know a damn thing about sexual health. A few weeks later Sarah Janes parents find out, are furious and Billy Bob is hauled up on charges of reckless sexual conduct. Is Billy's ignorance now criminal, or has he got some kind of defence?
I think that ignorance never is a defense in criminal law ("who knew that cleaning a gun with the safety off could hurt someone?"), unless it might fall within the reasonableness standard. Presumably a person over the age of consent reasonably ought to know about STDs and condoms, but perhaps that will be subject to community standards. The example does remind me of a female college friend who hooked up with a rather sheltered 4th year student, and who got a frantic call the next day wondering if she could have gotten pregnant. From oral sex. 23 years old and not knowing whether a girl's going down on him would get her pregnant seems like educational child abuse.
Martin, From reading Anthony's post (although I have not read the original proposal), it would seem that Billy should be able to withstand the burden of proving consent on the part of Sarah. Consent is an affirmative defense and Billy was reasonable in believing Sarah consented. She was above the age of consent, and did not suffer from a mental illness that Billy should have been aware of. I think Billy's state-of-mind is quite important; the statute does aim only to punish reckless behavior.
Sean, Keep in mind that this is consent to non-use of a condom, which I think would require that one actually know what a condom is. It would be like having my parents claim that I had consented to the sale of my horse ("I have a horse?"). One cannot consent in such complete ignorance as that, whereas one can be reckless in ignorance. I'm not even sure that I would find recklessness born of ignorance to be very excusable in an adult. Surely after a certain point, no matter how stupid Billy's parents were, he has an obligation to discover the potential risks of his behavior.
One cannot, of course, be reckless in ignorance, at least legally speaking, as recklessness requires a conscious awareness of a substantial risk and disregard of it. So if you don't know, you can be negligent, but not reckless. But that's not why I wrote in---just by the bye, you usually cannot sustain a conspiracy charge if each alleged conspirator was a necessary party to the underlying offense, as in sexual crimes, under the principle often referred to as the "takes two to tango" rule. I always liked that notion. I'm confused why it seems difficult to imagine non-rape instances of RCA, though. Aren't there a lot of people who want to hit skins, but who don't want to do so unprotected? I could certainly understand such a state of mind; it's even easy to sympathize. Proceeding without a condom wouldn't then be rape, if the complainant actually did consent to sex, just not the conditions attendant. Analogously, if I complain that I wanted the McDonald's cheeseburger, but not if it was going to make me fat---well, you might blame McDonald's for making bad food, but it's purely my responsibility that I ate it.
PG, I do see your point, but I'll add this: There is no doubt in the facts given by Martin that there was no condom used. So then the question is whether Billy can prove by a preponderance of the evidence that Sarah consented to sex without a condom. Billy wants to prove this to show that he was not reckless in his act of not using a condom with Sarah. I think Billy can prove this, because although Sarah and Billy did not know what a condom was, Billy reasonably believed that Sarah consented to condomless(probably not a word) sex. In Billy's mind at the time of the act, he knew that Sarah consented to sex. Neither of them knew of protection. So in his mind, prior to the act, Sarah was consenting to the sex they were about to have. (which happened to have been without the use of protection) I think we both differ on the meaning in this context of the word "reckless." The facts as stated make Billy out to be ignorant for sure, but maybe not reckless.
TtP: I think the problem is that in order for the sex act not to be rape requires something pretty fantastic to occur. The victim has to consent to sex in some hypothetical situation--"I'd like sex with a condom, please"--but not the specific sex act itself, because that act occurred without condom if it were to be RSC. But as I understood rape laws--and I'll admit, my knowledge isn't encyclopedic--consent is to the act in question itself, not some hypothetical which might occur between the two parties. If the victim didn't consent to sex without a condom, she didn't consent to that sex act, and thus the act would seem to be, if not rape, some form of sexual assault. The only way I can see it coming into play would be if the perpetrator claimed to be using a condom, but then didn't. Still, this gets into questions of proof and likelihood that soon border on the ridiculous...
Sean S, PG: "Reckless" is not a term identified in a vaccuum. As TtP points out above, recklessness is the disregard of a known risk. If Billy did not know of the risk of having sex without condoms--because he doesn't know what a condom is, having seemingly been raised on the dark side of the moon or something--then it's very tough for him to be reckless about it. The relevant Model Penal Code provision is 2.02(2)c: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. So that's one worry that's probably not of too much concern.
Actually, I have to say one more thing. The original article contains a section on the constitutionality of such a law, and the reasoning contained therein is, in a word, laughable. As Tony's already pointed out, the authors completely ignore the due process issue behind shifting the burden to the defense. Further, although Griswold and Roe would seem to indicate a certain constitutional limit to the states' power to legislate in these areas, the authors apparently believe that the source of the privacy right is the First Amendment. See ** at 79. (That's an honest suggestion, not just a cite. Go see it.) I'm not going to make the full argument that the Meyer-Pierce-Griswold-Roe-Loving freedoms stem from the 9th Amendment, but they definitely don't stem from freedom of speech. Notice one interesting dilemma the authors are in, though, because of the included defense of consent. The natural assumption would be that it's there because defense would wipe clean such a crime; we just wouldn't condemn the act if the other person were willing to go along. The authors seem to think, though, that it's merely useful to encouraging potential complainants to come forward. Well, who knows which it really is, but it's _one_ of them: Either it's unsafe sex that's wrong, or it's unconsented-to unsafe sex that's wrong. Now, if it's the latter, then the lack of consent becomes much more central to the behavior prohibited and the burden shift is unfair, as nonconsent starts to look like one of the material elements. (That's probably why the authors chose to characterize it otherwise.) But if it's the former, if the proposed law would target unprotected sex, _irrespective_ of consent, then they've wandered straight into Griswold land. For rather than affirmatively concluding that this or that form of sexual expression was healthy and meritorious and therefore to be encouraged by the state, that line of cases was, pretty transparently, about privacy. The whole point of Lawrence v. Texas is that the Court's not going to be in the business of judging which kind of relationships are good and which are bad. You wanna use your reproductive capacity in some way or another, the precedent is pretty clear that the courts won't allow the gov't to interfere because it's naughty. Anyway, I like these little corners where academics, for their best intentions, get forked between one constitutional prohibition on the one hand, and a different one on the other. God's little acre, it used to be called. TtP
Hmm. It seemed to me that consent went to sex itself, and didn't get much more specific than that, or at least not more specific than with a particular person, at a particular time. Remember the rape-by-fraud distinctions: Pretending to be the woman's husband is fraud in the factum and impermissible; pretending really to love the woman is fraud in the inducement and not something for the courts to worry about. Surely when you think about the _logical_ meaning of "consent," you can wonder about whether someone's really consenting to sex when they want to have sex, just with a condom that's not present. Is she consenting to sex, or only to some narrower notion of sex-with-a-condom. And you might trip over the notion of consent in van Jhering's heaven. But as a practical matter, it's not that difficult to tell them apart, is it? Just assuming that the statute were enacted, it wouldn't be difficult to say, okay, you wanted to have sex but not without a condom---the guy's guilty of A but not B. It's interesting to think about, though. I wonder, do you think you could have infinitely conditional consent? "I'll have sex with you, but only if I climax before you do. And the Red Sox win the pennant at the end of the season. And someone eventually develops a Grand Unified Theory." TtP
But TtP, condoms and sex are not as vaguely linked as anything you're putting together in the last comment. I'm trying to figure out what the testimony would look like. Essentially, the victim has to say that she consented to have sex with a condom, and that her partner didn't use a condom, but she consented to the sex itself anyway. Which seems pretty feeble as the basis for a criminal charge. It almost seems like a 'magic words' requirement. The defendant can have said, "Are you OK to have sex?" and so long as they do so without a condom, he's still not safe: because his partner may not have consented to condomless sex. The question becomes: if you consented to the act of condomless sex, doesn't that seem to be at least presumptively consisting to both parts of it? What manifestations of lack of consent can be shown to one but not the other? I will agree that in some theoretical sense one might be possible without the other, but as a practical matter, I can't come up with a fact pattern.
I'm resisting the urge to make a crack about your disassociation of sex and orgasm, but of course you're right. Except with respect to the Sox winning. Mmmm. Okay, there are a number of problems with thinking about this, not least of which being that Ayres's idea is absurd, and transparently so. It's not so much an idea, even, as a fit of spite: The authors are mad that nothing painful happened to Kobe Bryant, and they came up with a tenuous argument to say that if such actions were punished in the future, then syphilis rates would be lower, &c. &c. So naturally when you try to fit this notion into a well-ordered legal framework, it's not going to fit right. Perhaps in a bigger sense, though, the problem is the way we think about rape. It's been insisted that rape is sex without consent. Now, it's easy to see why we think about that, but it's not inevitable, nor was it the way we thought until very recently. And thinking of lack-of-consent as the critical matter does lead to some confusion, as here. We all know that an inebriated person is incapable of giving consent, but does anyone really think that a rape occurs every time drunk people behave badly? Likewise here: Maybe in a pure-logical sense, consent to a think cannot be given without consent to each associated element. But is anyone really stumped to think of a situation where someone wanted to use a condom but despite her disappointment was not raped, didn't consider herself raped, and wouldn't be seen by others as having been raped? I put it that way because I think it's an unfruitful venture to try and draw out the logically essential elements of consent. Certainly if you wanted to characterize what is going on here in such terms, you could do so. You just would have to do it in a procrustean fashion. _Either_ consent to a thing is logically possible without consent to each part of the thing individually; or such consent is impossible but what the victims of RSC are doing is submitting to sex "under protest" of the non-condom and without waiving her right to future litigation, rather than submitting to sex without consent. You just have to fit it in somewhere. But the result is known (if the girl didn't want to have sex, it's rape; if she did but with a condom, it's RSC), and it's just a matter of fitting our logic to the outcomes. TtP

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