Criminalizing ‘Reckless Sex’–Safeguard for Women or New Way to Herd Men Into Jail?

Should men go to jail for having sex without a condom? Law professors Ian Ayres and Katherine Baker say yes. Under their highly-publicized “Reckless Sex” proposal, 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.”

The penalty for the “guilty” man would be up to six months in jail. The authors say their proposal would help increase condom use and the “quality of communication in first sexual encounters” and thus “reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.”

Vermont Law School professor Cheryl Hanna opposes the “reckless sex” proposal, noting the gender double standard and also that the new law “gives the government unwarranted intrusion into our private lives” and will mean “women will be at greater risk for sexual assault because the focus will now be on condoms instead of consent.”

Baker and Hanna joined Glenn for a contentious His Side with Glenn Sacks on March 6, 2005.

To learn more, see:

  • Ian Ayres and Katherine Baker: A Separate Crime of Reckless Sex
  • Can the Law Regulate Reckless Sex?: Katharine Baker and Cheryl Hanna debate
  • IT MAY BE PERNICIOUS, BUT IS IT A CRIME? Professors Make a Case for Criminalizing Reckless Sexual Conduct (American Bar Association Journal, 2/4/05).
  • Criminalizing Reckless Sex (New York Times, 12/12/04)
  • The Kobe Bryant trial: Glenn debates NOW leaders in the San Francisco Chronicle: see Glenn’s column Kobe Bryant Ruling a Step Towards Equity in Rape Trials (San Francisco Chronicle, 8/1/04) and also the National Organization for Women’s counterpoint piece Survivors must not be twice victimized.
  • Glenn’s co-authored column Research Shows False Accusations of Rape Common (Los Angeles Daily Journal, San Francisco Daily Journal, 9/15/04, World Net Daily, 9/18/04)
  • TalkLeft on Reckless Sex