A few years ago, a couple of legal scholars named Ian Ayres and Katharine K. Baker wrote a law review article that is a testament to misandry, and we do not make that assertion lightly. In their article, called A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599 (2005), they proposed a new law that would criminalize what they called "reckless sex." The article can be found here.
What is "reckless sex"? It is penile penetration, without a condom, in a first-time sexual encounter. It doesn't matter if there was consent to the act itself, there must also be consent to unprotected sex. So, general consent to the act would not be enough. According to the proposed statute, the male must prove that the woman "expressly asked to engage in unprotected sexual activity or otherwise gave unequivocal indications of affirmatively consenting to engage in sexual activity that is specifically unprotected."
What was the purpose of this silliness? Sit down for this one: one of the purposes, the authors freely admit, is to "reduce the . . . prevalence of acquaintance rape." Rapists are also more likely to engage in condom-less "reckless" sex, so this is a way of reducing acquaintance rape.
While in theory, both men and women could be charged with this new crime -- and sentenced to up to six months in jail -- the proposed law is aimed at young men, and the authors freely admit that young women would have "de facto immunity" from prosecution. Read that again, we're not making it up. "While facially neutral with regard to sex, as a practical matter women will be largely beyond prosecution," they concede. The act of male penetration would almost always excuse the woman from prosecution.
The authors admit that this might seem unfair "because," the concede, "women can be reckless too in instigating, precipitating, or just willingly consenting to an unprotected first-time sexual encounter." So why do they persist in giving women de facto immunity? Or, as the authors put it themselves: "Why is it fair that the man who consents to unprotected sex must run the risk of prosecution, when the woman who consents to unprotected sex does not?"
First, they say this concern would be a problem if women lied about such matters, but "the social science research indicating that few women make false claims in this arena." (Sigh. These two would do well to spend a few months reading through the true life stories on this blog and our predecessor blog before blithely trivializing the victimization of so many innocents.)
Second, they say that since one of the aims of the law is to nab more acquaintance rapists, and the vast majority of acquaintance rapists are male, "from the perspective of making progress on acquaintance rape it is almost completely unproblematic to have a larger de facto immunity for women." This is fair, they say, just as it is fair to punish only males for statutory rape since girls are hurt by teenage sex far more than boys. (It is unfathomable to us how these two hold teaching positions that include male students.)
Third, and most important, "a woman would be much less likely to report a partner's reckless behavior if by doing so she was subjecting herself to prosecution for the same act." (Never mind that it is grossly unfair to punish only males for the same offense females commit.) "More important," they say that punishing women for this crime "would aggravate the current underreporting of acquaintance rape."
The authors also explain why they have intentionally drafted the model statute to have a mild punishment (just several months in prison) compared to rape: so that more young men will be punished. (No, we're not making that up.) Law enforcement personnel would be more likely to charge young men for this crime if the punishment is not great, they insist. They write: "The more the behavior gets punished somewhat, the easier it will become to punish in general and the more people will be punished." They provide a rape analogy: "After an acquittal in a well-publicized college gang rape, one juror explained that the main concern of some jurors was not wanting 'to ruin the boys' lives.' . . . . The crime of reckless sexual conduct will make it easier to punish callous sexual behavior precisely because the punishment will not ruin the defendants' lives."
There you have it. Yet another example of enlightened guardians of our children who harbor views about the young men they teach that are positively frightening. That they propose to institutionalize their bigotry in criminal statutes that would almost certainly punish the innocent is indefensible and morally grotesque.