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

Posted: 10 Mar 2006

See all articles by Kimberly Kessler Ferzan

Kimberly Kessler Ferzan

University of Pennsylvania Carey Law School

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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

Suggested Citation

Ferzan, Kimberly Kessler, A Reckless Response to Rape: A Reply to Ayres and Baker. U.C. Davis Law Review, Vol. 39, pp. 637-668, 2006, Available at SSRN: https://ssrn.com/abstract=700502

Kimberly Kessler Ferzan (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

HOME PAGE: http://https://www.law.upenn.edu/cf/faculty/kferzan/

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