Some of you might have been wondering when I'd ever touch on subjects legal here again. Well, how's this: you get both law and sex in the same post.
Will Baude and Peter Northup are both debating the wisdom of a proposal by Professors Ian Ayres and Katherine Baker. Basically, the two professors want to reduce STD transmission and acquaintance rape:
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. . . .
Baude spends quite a lot of time discussing (or edging around) sexual positions and the difficulty of establishing consent. Northup counters with this eminently reasonable idea:
We are therefore only dealing with cases where only one person has consented (if both had, we wouldn't be having a trial), and the only question is which one. The preponderance of the evidence standard means that if the woman can establish that the probability she consented is <50%, the probability the man consented must be >=50%, conditional on someone consenting. Thus showing that you probably didn't consent immunizes you from prosecution for RSC. Hence, in all the cases we are concerned about, there is essentially no risk of the statute backfiring and deterring victims from coming forward--or at least, a much lower risk of backfiring than the current risk of emotional/reputational damage from participating in a criminal sexual assault trial.
Which is true, as far as it goes. My trouble with the proposal is that it wants to impose a 'preponderance of the evidence' standard upon the defendant. He must prove, beyond a preponderance of the evidence, that consent was given not to use a condom. Ayres and Baker's support for this seems to me to be flaccid... if you'll excuse the pun.
Their policy argument basically runs thus:
The affirmative defense afforded defendants is amply supported as a matter of public policy. First, as discussed above, this defense gives women who are the victims of non-consensual sex more freedom to come forward and report the crime to police. Second, the difficulty of proving non-consent beyond a reasonable doubt makes the re-allocation of the burden more appropriate. Indeed, the state of Washington already allocates the burden of presenting and proving the issue of consent to the defendant in (far more serious) rape cases. Third, putting the burden of proving non-consent on the prosecution in cases involving unprotected first encounter sex would encode in the law a presumption that women willingly put their physical and emotional health at extreme risk. It would assume that women act recklessly unless the prosecution can prove otherwise.
(citations omitted) This is subject to a number of objections. First, the Professors mention only in a footnote that for the crime of rape, Washington requires proof of consent as an affirmative defense, but requires proof of forcible compulsion
. This is hardly the same as criminalizing conduct where the sex itself
was consensual, but not the condom usage. (Because if the sex itself weren't consensual, then the crime would be rape.)
But more important is the Professors' third assertion, that putting the burden of proof on the prosecution--to prove a lack of consent beyond reasonable doubt--somehow encodes a presumption of recklessness to women. Well, no. Actually, it just places a presumption of recklessness on a lot of sex acts, and that's probably a reasonable assumption. Let's put it this way: do you really believe that of all the initial acts of condomless sex in the country--which the Professors rightly point out is risky--the predominant number of them are acts of coercion? I'd at least want some statistical backing for this, and it would have to be pretty solid. Because otherwise, the presumption that women will put themselves at risk if the right payoffs are there--be they matrimonial potential or merely good sex--would seem to be a pretty good presumption. But Professors Ayres and Baker have replaced the Reasonable Man standard with one of the Eminently Sensible Woman.
Worse, the Professors' solution seems to be an end-run around Patterson v. New York (432 U.S. 197), which places the burden of proof on the prosecution to prove all elements of the offense beyond a reasonable doubt. They make a rather tepid effort to distinguish this by stating that what they're criminalizing is first time unprotected sex, not non-consensual sex:
We think there little doubt [the proposed statute is constitutional] for one simple reason: Our statute does not criminalize what rape statutes criminalize. Our statute criminalizes unprotected sex. Rape statutes criminalize nonconsensual sex. . . .It would be perfectly possible to be guilty of rape, but not guilty under our statute.
But is it? Let me go out on a limb here and say that this is the affirmative defense that eats the crime. I think it's safe to say that the vast majority
of first-time sexual encounters that do not involve protection are consensual on both sides. By adding the affirmative defense, the the proposed law makes the real
crime the lack of consent, not the condomless activity. Otherwise, you'd criminalize the vast proportion of it. 
Here, the Professors run smack into Justice White's Patterson opinion, because for that the prosecution must bear the burden of proof beyond a reasonable doubt. The professors show their true colors a few paragraphs later:
We have included a defense of consent both because, somewhat counterintuitively, it makes it more likely that acquaintance rape will be prosecuted, and because consent qualifies the perceived egregiousness of the defendantís behavior.
But of course, if the authors are being honest, it will not
make it any more likely that acquaintance rape will be prosecuted. Rather, it makes it likely that "reckless sexual conduct" will be prosecuted--because that's the crime that's going to be charged. The authors wish to use that net to catch quite a few rapists which they feel are being unpunished. Which is fair enough, but precisely the kind of procedural jiggery-pokery that Patterson
sets out to prevent.
(update) The second justification for the affirmative defense turns upon the purely bizarre. Read the last bit of that sentence again: consent qualifies the perceived egregiousness of the defendantís behavior. But does it? If the crime is really reckless sexual behavior, then if the 'victim' of the crime consented, they are by definition another defendant. They too engaged in consensual reckless sex, although they share the same defense. Somehow, two people engaging in reckless conduct likely to bring them into contact with STDs--the ostensible purpose for the law--are somehow less culpable?
In any event, you can't fault the Professors for putting forward a provocative article. But in the real world, I think their statute gets struck down pretty quickly.
Update: As I keep considering this proposal, the unique nature of sex and the uniquely one-sided nature of the articles assumptions make me wonder how it would fit in with the rest of criminal law. For instance, if both parties set out to commit reckless sexual conduct, even with them both consenting, can they be charged with conspiracy, even if they might not be guilty of the underlying charge? I'll admit, conspiracy was never my strong suit.
: And if it is possible for one to be guilty of reckless sexual conduct without being guilty of rape, it's difficult to see how: these would be cases in which... what? The woman said, "Yes, honey, but only with a condom... no... oh, well, ok yes"? Simply put, the mind boggles. I can see how it would be easier to prove the facts for RCA than for rape, but under any given set of findings that would support a RCA conviction, I can't think of how you wouldn't get some kind of sexual assault.