A Reckless Response to Rape: A Reply to Ayres and Baker
Kimberly Kessler Ferzan
University of Virginia, School of Law
U.C. Davis Law Review, Vol. 39, pp. 637-668, 2006
In a recent 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, and its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. As rape reform, which is arguably the true aim of the statute, the proposal is morally and constitutionally impermissible: it punishes the innocent and improperly allocates the burden of proving consent to the defendant. The proposed statute also distracts from rape reform by attempting to circumvent the critical normative questions about consent and offering a second-best solution in consent's place. Finally, the compromise verdicts that the authors seek, offered as a solution to the "sticky norms" problem, may ultimately undermine the seriousness of the very rapes the authors hope to prevent.
Keywords: criminal law, rape
Date posted: March 10, 2006
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