Felony Firsts

Yesterday, Ian Ayres (whom I know slightly) made the suggestion that there be a crime of first sexual encounter without use of a condom. After I have read the paper I will provide a reasoned (but perhaps not thoughtful) response. An initial reaction is that, whatever the details, this is a bad idea. (Alright, this is a second reaction: my first reaction was - this is ridiculously dumb; did Ayres get hit in the head with a large hammer?) We will see how the details play out. Starting off, however, it is pretty clear from past experience (say AIDS/HIV) that the criminal law is a paticularly crappy way to deal with health problems (and health issues have to motivate here or there would be little point to required use of a condom). In adddition the suggested correlation of first time encounters without condoms and coercive sex is (a) speculative and (b) too poor a relation to support use of the criminal law. My final response at this stage (and, again, I have not read the article yet) is that this may well have largely counter-productive effects. It may well trivialize more "serious" sex crimes by encouraging down-charging or subjecting prosecutions to public scorn. But these last two points are pure speculation.

Update
I have read the paper, and have further comments above. And those coming from Instapundit, welcome to this small diversion on the other side of the political line.

Comments

[CroolWurld]

I can just see the public service ads: "Friends Don't Let Friends F*** Drunk."

[Spoons]

You're first reaction was the correct one.

I propose a law mandating forced sterilization of Ian Ayres & Katharine Baker. They are clearly too stupid to be allowed breed.

[Eric]

The problem is not that it is dumb. The problem is that it is dishonest. It is clearly not about public health, otherwise consent would not be a defense. It is about prosecuting rape without having to prove it. It claims to get around the he said/ she said problem, but it does this at the expense of a presumption of innocence.

Why stop at risky sex? We could get convictions for all rapes, just by outlawing all sex, unless the man can prove it was consensual.

[SourAaron]

Agreed - dishonest as hell. If you read through the PDF they link to, you will read, basically, that "shifting the burden of proof to the man is appropriate because women are very unlikely to falsely accuse". This is, of course, stated as fact, as though there is universal legal agreement on this point. (Hint - there isn't - there are plenty of studies that find well more than 2% of cases involve false accusations - as the authors point out)

By application of Occam's razor, why not just formally shift the burden of proof in *actual rape* cases to the man, and call it a day.

[vuelta]

The problem is not that it is dumb

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