A Reckless Response to Rape: A Reply to Ayres and Baker

Abstract:     
In a forthcoming article in the University of Chicago Law Review, Professors Ian Ayres and Katharine Baker propose the crime of "reckless sexual conduct," criminalizing unprotected first-encounter sexual intercourse. The goals of this proposal are to combat the epidemic of sexually transmitted diseases by requiring condom use and to reduce acquaintance rape by "forcing" communication. While the goals are admirable, the proposal is deeply flawed. As public health legislation, it is overinclusive, thereby punishing the morally innocent. Its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility, and its evidentiary implications, encompassing the admissibility of the victim's sexual history, cause the statute to operate at cross-purposes with its acquaintance rape rationale. As rape reform, which is arguably the true aim of the statute, the proposal is constitutionally and morally impermissible: it punishes the innocent and improperly allocates the burden of proving consent to the defendant. Finally, the compromise verdicts sought, offered as a solution to the "sticky norms" problem, may ultimately undermine the seriousness of the very rapes the authors seek to prevent.

working papers series