A Separate Crime of Reckless Sex
Yale University - Yale Law School; Yale University - Yale School of Management
Katharine K. Baker
Chicago-Kent College of Law - Illinois Institute of Technology
August 24, 2004
Yale Law School, Public Law Working Paper No. 80
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. As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in unprotected first encounters.
The new law, by increasing condom use and the quality of communication in first sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.
Number of Pages in PDF File: 85
Keywords: aquaintance rape, sexually transmitted disease, criminal law
JEL Classification: K14
Date posted: August 25, 2004