Reckless Sex: Seriously Criminal?

Surfing the net this morning, I came across an interesting article by Ian Ayres and Katharine Baker, professors of law and Yale and Chicago-Kent, respectively. This article was entitled "A Separate Crime of Reckless Sex" and 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 individual, the defendant had sexual intercourse without using a condom. Proof of consent to unprotected intercourse would rest on the defendant, and if found guilty, the punishment would be a six-month prison term. Reason: "As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in unprotected first encounters. The new law, by increasing condom use and the quality of communication in first sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape."

Notwithstanding my firm belief in first-encounter condom use or denying that rape is a heinous and disgusting act, this article got me thinking. At one point, Ayres and Baker state that a correlation has been established between uprotected sex and coercion, and therefore unprotected sex should be prosecuted. I find fault with this reasoning on a very basic level.

Correlation does not establish cause/effect. Because variable appears to rise when variable b does, we cannot conlude that a rise in variable b is causing a rise in variable a. To demostrate this, let's make variable a aspertame and variable b brain tumors. After the approval of aspertame sometime in the 80s and it's subsequent use in various food products, there seemed to be an increased incidents of brain tumors in the US population. Wolfcriers and alarmists would have us believe that aspertame was causing brain tumors (gasp!). Upon objective analysis of this claim, it was discovered that increased incidents of brain tumors was due to increased quality in the tools used to diagnose brain tumors, and had nothing to do with artificial sweetener. The two had a correlation but changes in variables a and b were entirely independent from each other.

More than a correlational study is needed to establish a cause/effect relationship. I think it absurd to establish a law prohibiting one thing that does not necessarily result in another, although it can be reasonably assumed that in some cases it may. In this case, as in so many others, sexual choices made by individuals are just that: choices. Made by individuals. Not fodder for bedroom legislation. As long as two adult individuals are consenting, there should be no crime.

Human relationships are perhaps the most variable thing in the universe, and attempting to establish regulatory legislation making all first sexual encounters adhere to a set of preset rules is not only unreasonable, I would go so far as to say that it is wrong. I would agrue that coercion by organization is worse than coercion by an individual, because the coerced has vastly inferior resources. This is a clear-cut case of compelling a person to do, or to abstain from doing, something by depriving the person of the exercise of his or her free will, particularly by use or threat of physical or moral force. The key here is the excersize of free will. The use of protection is a very individual choice and should be left entirely up to those involved. Yes, protection can prevent the spread of infection, but so can handwashing, and nobody's legistating public handwashing laws. Yes, many rapists don't use condoms, but I think it's a dangerous thing to begin to equate unsafe sexual contact with the enforcement thereof.