Post by damienbruckard on Aug 16, 2009 0:34:26 GMT 10
I just came across a proposal which I thought was quite interesting. Some law professors in the US propose criminalising "reckless sexual conduct", that is, unprotected first-encounter intercourse.
"The proposal is simple: a person would be guilty of reckless sexual conduct and subject to imprisonment up to three months, if, in a first-time sexual encounter with another specific person, he or she had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant by preponderance of the evidence. The prosecution would have to prove beyond reasonable doubt that this was the first time that the defendant had sexual intercourse with the accuser and hat no condom was used."
The goals are the proposal are:
There has been a pretty damning response to the proposal (lawreview.law.ucdavis.edu/issues/Vol39/Issue2/DavisVol39No2_Ferzan.PDF). These authors make several criticisms:
I think the most interesting aspect of the proposal is the theory of using information-forcing default rules in the criminal law (ie, preventing rape by fostering communication):
As noted at p18 of the above link) "The proposal creates an incentive for the man to ask the right questions. If a man needs to reach for a condom, there will be a pause in the sexual activity that will give both parties an opportunity to communicate about consent. If the man asks the woman for permission to forego using a condom, there will likewise be an opportunity for communication. But if hte man simply proceeds with intercourse without stopping for a condom or obtaining articulated consent, the penalty default kicks in. He has foregone the opportunity for communication and is guilty of reckless sexual conduct. Thus, the proposed statute, "though not as explicit in its communicaiton forcing as those rules that require verbal consent before initiating a move to a higher level of sexual intimacy, would likely have a comparable information-forcing effects"
I wonder whether there are other areas where it would be a good idea for create incentives for better communication, or other methods for creating those incentives in the context of intimate sexual relations.
Not sure how it would go as a debate though. What do you think?
"The proposal is simple: a person would be guilty of reckless sexual conduct and subject to imprisonment up to three months, if, in a first-time sexual encounter with another specific person, he or she had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant by preponderance of the evidence. The prosecution would have to prove beyond reasonable doubt that this was the first time that the defendant had sexual intercourse with the accuser and hat no condom was used."
The goals are the proposal are:
- to combat the epidemic of sexually transmitted diseases by requiring condom use. STDs cause significant harm to others and present a public health problem, which condoms can prevent.
- to reduce acquaintance rape by 'forcing' communication. That is, it would decrease rape between people who know each other by creating a 'default rule' of condom usage that will have 'information-forcing effects'. The time lapse created by a man putting on a condom, or getting consent not to do so, presents an opportunity for the woman to express whether she actually desires intercourse. With more deliberation and communication, the likelihood of acquaintance rape will be reduced.
- to give prosecutors a greater arsenal in trying sex offenders. Often there are reasonable doubts about whether an alleged acquaintance rapist raped, but htere is often no question that he engaged in an unprotected first-time sexual encounter
There has been a pretty damning response to the proposal (lawreview.law.ucdavis.edu/issues/Vol39/Issue2/DavisVol39No2_Ferzan.PDF). These authors make several criticisms:
- It is overinclusive, thereby punishing the morally innocent
- Its conseption of consent as an affirmative defence fundamentally misunderstands criminal responsibility
- It is morally objectionable as it punishes the innocent and improperly allocates the burden of proving consent to the defendant
- It detracts from true rape reform by offering a second-best solution
I think the most interesting aspect of the proposal is the theory of using information-forcing default rules in the criminal law (ie, preventing rape by fostering communication):
As noted at p18 of the above link) "The proposal creates an incentive for the man to ask the right questions. If a man needs to reach for a condom, there will be a pause in the sexual activity that will give both parties an opportunity to communicate about consent. If the man asks the woman for permission to forego using a condom, there will likewise be an opportunity for communication. But if hte man simply proceeds with intercourse without stopping for a condom or obtaining articulated consent, the penalty default kicks in. He has foregone the opportunity for communication and is guilty of reckless sexual conduct. Thus, the proposed statute, "though not as explicit in its communicaiton forcing as those rules that require verbal consent before initiating a move to a higher level of sexual intimacy, would likely have a comparable information-forcing effects"
I wonder whether there are other areas where it would be a good idea for create incentives for better communication, or other methods for creating those incentives in the context of intimate sexual relations.
Not sure how it would go as a debate though. What do you think?