A law review article published in 2005 proposed defining a new crime: “reckless sexual conduct.” The article’s authors are Ian Ayres, William K. Townsend Professor at the Yale Law School, and Katharine K. Baker, Professor of Law and Associate Dean, Chicago-Kent College of Law. Professors Ayres and Baker are, in short, eminent professors at leading U.S. law schools. Their article appeared in the prestigious University of Chicago Law Review. Their article explicitly thanked for comments a roster of important law professors and institutions:
Jennifer Brown, John Donohue, Steve Heyman, Christine Hurt, Christine Jolls, Edward Kaplan, Barry Nalebuff, Kate Stith, Richard Storrow, and seminar participants at Dickinson, Harvard, Iowa, University of Missouri-Kansas City, and Yale law schools (as well as the Yale Epidemiology and Public Health Department)
The article was written with the assistance of at least six acknowledged subordinate research workers (two women and four men). The article apparently is a weighty work of legal scholarship. It suggests that the criminalization of men is of little concern in legal scholarship concerning criminal law.
The article’s proposed criminal statute formally obscures that it effectively further criminalizes men. The proposed criminal statute is headed “Reckless Sexual Conduct.” Its first clause:
(1) A person is guilty of reckless sexual conduct when the person intentionally engages in unprotected sexual activity with a person other than his or her spouse and these two people had not on an occasion previous to the occasion of the crime {the new crime defined in the proposed statute} engaged in sexual activity.
Subsequent statutory text defines “sexual activity” as “penile penetration of a vagina or anus accomplished with a male or female” and “unprotected sexual activity” as sex without using a condom.^ The authors explained that this is “purposefully, a very limited definition of sexual activity.” Their purpose is to “try to maximize legitimacy and therefore enforcement.”^ Focusing criminalization on penises maximizes legitimacy in a legal culture that isn’t concerned about the criminalization of men.
The proposed new crime effectively allocates to men criminal responsibility for having first-time sex without a condom. The proposed statute uses sex-neutral terms “person” and “his or her.” However, the proposed statute’s definition of sexual activity is penis-focused. What would be the balance of risks of criminal punishment under the proposed statute if a man and woman engaged in first-time, consensual, non-condom-impeded sex? Pondering complex issues of interpreting the somewhat ambiguous proposed statute really isn’t necessary. Until 2012, the FBI limiting reported rape to rapes of females. Official reports on sexual victimization commonly exclude “made to penetrate” from statistics on rape and sexual assault. Domestic violence law and policies gender profile men for arrest. Imprisonment is imposed highly disproportionately on men. The balance of risks of criminal punishment for a man and woman engaged in first-time, consensual, non-condom-impeded sex under the proposed statute surely would tilt overwhelmingly toward criminalizing men.
The authors designed the proposed law to obscure its substantial discrimination. The authors noted that they rejected “giving women a per se defense against prosecution”:
Our deeper concerns are prudential. We worry that the social meaning of this de jure disparate treatment against men might undermine the effectiveness of the statute. … The appearance of unfairness is important. … one can imagine pathological circumstances (gun-to-the-head scenarios) in which a woman would in fact be prosecutable.^
This attempt to manage the “appearance of unfairness” is formally shrewd and communicatively effective. The article as a whole effectively conveys the understanding that men should be criminally responsible for having consensual, first-time, non-condom-impeded sex with women. At the same time, the formal statute obscures that effect and provides arguable formal deniability.
The proposed new crime of reckless sexual conduct would apply to sexual activity of about three million men in the U.S. per year about the year 2002. Roughly 13 million unmarried men ages 15-44 have sex with a new partner in the U.S. in a given year. In its cost-benefit analysis of the proposed new crime, the article uses 10% to 100% as figures for the share of the share of first-time sexual encounters in which the couple uses a condom.^ Among U.S. men ages 15 to 44 in 2002 who first had sexual intercourse from 1995-2002, 32% had sex without a condom in their first sexual intercourse.^ A reasonable estimate is that 25% of men who have sex with a new partner in a given year have that sex without using a condom. Hence roughly three million men a year would be subject to prosecution under the newly defined crime.
While the proposal to criminalize men for first-time sex without a condom emphasizes improving communication among first-time sexual partners, the proposal obscured communication within the criminal justice system. How would information that a man has engaged in first-time sex without a condom be generated within the criminal justice system? If a rapist did not use a condom in first-time sexual intercourse with a rape victim, the rape victim could report first-time sex without a condom, but surely the legal system should encourage rape victims to report rape. If a couple engaged in first-time sex without a condom, but the penis-penetrated partner did not want the penis-baring partner to suffer punishment, the crime of first-time sex without a condom would go unreported. Without totalitarian relationship-tracking and video surveillance systems, police cannot police first-time sexual encounters, or even identify first-time sexual encounters. Criminalizing men who engage in first-time sex without a condom would create a crime that could not be generally enforced. The criminal justice system could detect that proposed crime only when a man is accused of rape, or when the penis-penetrated partner (or a physician with whom the penis-penetrated partner confides) wants the man to suffer punishment. The proposed crime is not substantially a new rule of law. It is substantially an additional instrument for punishing men.
While the article provided a model statute for criminalizing men who engage in first-time sex without a condom, the article did not discuss the proposed statute’s sidestepping of U.S. criminal procedure and trial by jury. By the Sixth and Fourteenth Amendments of the U.S. Constitution, as interpreted by U.S. courts, persons accused of a crime that carries a prison sentence of six months or more are entitled to trial by jury and other constitutional rights of the accused. Persons accused of rape or sexual assault thus are typically entitled to trial by jury and other constitutional rights. Trial by jury engages ordinary citizens in the administration of criminal justice. Trial by jury fosters public communication about the actual practice of criminal justice administration. For men who engage in first-time sex without a condom, the article proposed the punishment “imprisonment in the state prison for up to three months, or a fine.”^ While state prisons normally hold persons sentenced to imprisonment of a year or longer, the proposed shorter prison sentence shrewdly places adjudication of this new sex crime outside of the constitutional protections of public criminal trials. The proposed crime would be adjudicated more tightly within legal culture and more distantly from communication with ordinary citizens. The proposal apparently doesn’t value general public deliberation about the criminalization of men.
Underscoring its lack of concern about criminalization of men, the article presented outdated rape statistics and engaged in no critical analysis of those statistics. The article, which includes references dated through February 2005, stated:
crime victim survey data from the mid- 1990s suggest that each year an estimated 500,000 women are victims of some form of rape or sexual assault.^
That cited statistic is based on National Crime Victimization Survey (NCVS) data from 1992 and 1993. NCVS rape/sexual assault statistics have major conceptual and statistical weaknesses. By the early 2000s, the NCVS was estimating about half as many rape/sexual assault victimizations per year as in 1992 and 1993. Criminalization of sexual victimization has important implications for incarceration. Concern about mass incarceration should motivate citing the best, most current statistics on rape/sexual assault, not the highest ones. Concern about highly disproportionate imprisonment of men should be relevant for legal scholars’ thinking about further criminalization of men.
The article’s discussion of false rape accusations underscores lack of concern for the highly disproportionate imprisonment of men. Regarding false accusations of rape, the article stated:
Current research suggests that the propensity of women to make false reports of acquaintance rape is extremely low. {footnote omitted} As Bryden and Lengnick summarize, “The conventional wisdom now is that the proportion of false reports is negligible, perhaps as low as 2%, a figure said to be comparable to that for most other major crimes.” ^
This “social science research” plays a key role in the article’s arguments.^ However, the article did not fairly cite its source. Immediately following the above quotation, the source continued with these sentences:
This new orthodoxy may well be correct, but, like the contrary opinions of Hale and Wigmore, it derives more from intuition than from common experience or scientific evidence. Although many have tried, no one has succeeded, either deductively or empirically, in demonstrating that the proportion of false rape reports is either low or high.^
The claim that “false reports account for only about 2 percent of rape complaints” had become by the end of the 1990s regularly asserted and widely accepted among legal academics. Nonetheless, an independent scholar’s research, published in the year 2000 in a low-ranking law review, showed that all examined instances of that assertion could be traced back to a highly normative work that offered an “interpretation of some data, now a quarter-century old, of unknown provenance from a single police department unit.”^ Evidence on reported inmate sexual victimizations indicates that 30% of rape allegations are false. An additional 50% of rape allegations lack sufficient evidence for substantiation.
The proposed crime of first-time sex without a condom encodes lack of concern about false accusations. The proposed criminal statute specifies that a person (man) accused of having sex without a condom has the legal burden of affirmatively showing unequivocal consent to first-time sex without a condom.^ A man facing a false accusation of not gaining consent for not using a condom surely couldn’t meet the burden of demonstrating unequivocal consent. The article’s proposed crime would criminalize about three million men per year in the U.S. about the year 2002. Even a false accusation share as low as 2% implies, under existing behavior and ideal enforcement, about 60,000 men per year imprisoned on false accusations. For comparison, U.S. courts sent 34,320 women to state prisons in 2002 on new commitments for any crime. By this metric, the article’s proposed crime implies a relatively large number of men being imprisoned on false accusations.
The article preemptively attacked any man who would express concern about false rape accusations. The article declared:
The kind of man who does not particularly care about the quality of a woman’s consent may be the same kind of man who will find the risk of this new crime to be most salient. This is because men who hold women in low esteem are likely to overestimate the risk of being falsely accused. This “irrational” fear of false rape accusations is well established in the literature. {footnote omitted} The statute {criminalizing men for first-time sex without a condom} harnesses this misogynist bias^
Being characterized as a man “who does not particularly care about the quality of a woman’ consent,” “who hold{s} women in low esteem,” and who is a misogynist is likely to be emotionally and professionally damaging. The harm is likely to be particularly severe when that characterization carries the authority of leading law professors writing in a scholarly article published in a leading law review. In response to the threat of personal harm, a reasonable man might decide that he has no alternative but to remain silent about the risks of the proposed new crime.
Successful law professors consider carefully the career costs and benefits of scholarly arguments. They generally avoid criticism that might lead to “accusations of ‘non-collegiality’ that are easily dispersed by the gelatinous sob brotherhood of the legal academy.”^ Male law professors should fear the anger of the legal academy’s sob sisterhood even more than that of its sob brotherhood.
Law scholars’ responses to the proposed new crime illustrate results of intellectual, emotional, and professional constraints and interests. The article proposing the new crime of reckless sexual conduct has been cited about 25 times in scholarly law literature. Only one of those citing articles contains any substantial criticism. That unique article provided detailed legal analysis leading to a highly negative evaluation:
The proposal, however, is deeply flawed. As a public health regulation, this proposed statute is highly problematic. It is overinclusive, thereby punishing the morally innocent. Moreover, its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. … this proposal is morally objectionable and constitutionally impermissible: it punishes the innocent and improperly allocates the burden of proving consent to the defendant.^
The author of this critique was Kimberly Kessler Ferzan, a law professor at Rutgers School of Law. Her critique was published in the University of California Davis Law Review. In the legal academy’s status hierarchy, her review ranks far below the critiqued article’s explicit associations with Yale, Harvard, and Chicago. In accordance with the legal academy’s norms of deliberative cartelization, Ferzan arranged for pre-publication review of her arguments by the authors of the article she critiqued:
For comments on drafts of this manuscript, I thank Ian Ayres, Katharine Baker, Michael Dorff, Doug Husak, Jay Feinman, Dennis Patterson, and Ray Solomon.
Ferzan’s primary concerns in her published critique are the legality of public health measures and gynocentric rape reform. More generally, the proposal for extraordinary further criminalization of men didn’t prompt in the legal literature any responding review discussing the prison population’s enormous sex disparity and criminalization of men. Those profound legal and human issues appear to be largely undiscussable within legal scholarship. Legal scholarship favors work such as lengthy analysis supporting greater criminalization of men self-deluded about their presumed actual guilt of date rape.^ Legal scholarship lack of concern for imprisoning men points to highly significant failure in public discourse.