85 Pages Posted: 25 Aug 2004
Date Written: August 24, 2004
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.
Keywords: aquaintance rape, sexually transmitted disease, criminal law
JEL Classification: K14
Suggested Citation: Suggested Citation
Ayres, Ian and Baker, Katharine K., A Separate Crime of Reckless Sex (August 24, 2004). Yale Law School, Public Law Working Paper No. 80. Available at SSRN: https://ssrn.com/abstract=581663 or http://dx.doi.org/10.2139/ssrn.581663