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Debate: Should Reckless Sex be a Crime?

By Jeralyn, Section Crime Policy
Posted on Tue Feb 15, 2005 at 05:08:15 PM EST
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There's an interesting debate going on at LegalAffairs:

Sexually transmitted diseases can't be outlawed, but can the law slow their spread? In a forthcoming article in the University of Chicago Law Review, Ian Ayres and Katharine Baker propose adding the crime of "reckless sexual conduct" to the books. Citing data that shows that STDs are transmitted with disproportionate frequency the first time two people have sex, Ayres and Baker argue first-time intercourse without a condom should be punishable by putting the perpetrator in prison for three months.

Former prosecutor Cheryl Hannah argues against the laws. My view: We need to stop looking to the criminal justice system to cure every conceivable social ill. [hat tip Instapundit.]

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    • Debate: Should Reckless Sex be a Crime? | 22 comments (22 topical)
    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#1)
    by Talkleft Visitor on Tue Feb 15, 2005 at 06:24:27 PM EST
    The Colorado General Assembly is considering a law that would outlaw any sexual activity by someone who has HIV, regardless of informed consent, use of a condom, or any other factor. The law doesn't cover hepatitis C, HPV, or any of the other potentially fatal sexually transmitted diseases.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#2)
    by Darryl Pearce on Tue Feb 15, 2005 at 06:40:05 PM EST
    Doesn't sex that transmits a disease require two or more perpatrators? I'd knock the law off on that error alone.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#3)
    by Richard Aubrey on Tue Feb 15, 2005 at 07:02:12 PM EST
    Once you mandate, say, helmets for motorcyclists, or seatbelts for drivers, you've opened the concept of penalties for reckless sex. Same thing. Social costs borne by all of us. It seems, though, that the penalties the law contemplates are less than those imposed by nature. Still, there is the impulse to fix some of the stupidest things people do. But, as somebody said, "Against stupidity the gods themeselves strive in vain."

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#4)
    by BigTex on Tue Feb 15, 2005 at 07:04:03 PM EST
    Seems like a total waste o' a law. Th' victim, and there could be a bona fide victim here, has civil remedies as their discretion fer battery. They consented t' th' act, but not th' spread o' th' disease. Besides, wouldn't this get into messy right t' procreate grounds, or other constitutional issues? Given th' actual failure rates o' contraceptives can th' state have enough o' an interest t' survive even intermediate level o' review, much less strict scrutiny? Why pass such a law if it's likely goin' t' be stuck down, and civil remedies exist t' compensate fer an actual wrong?

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#5)
    by Talkleft Visitor on Tue Feb 15, 2005 at 07:43:03 PM EST
    This is a faux problem. No need for laws and jail. The spread of STDs is slowed by condoms, education, readily available condoms, education. These things, of course, are bitterly opposed by the radical religious right that controls health and human services. Those folks would love to fill up more prisons (run by religious organizations, right?) with people who "sinned" and now have to "pay for their sins." Let's just get out the big ol' red 'A' and be done with it.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#6)
    by Talkleft Visitor on Tue Feb 15, 2005 at 07:47:12 PM EST
    Richard, I'm not entirely disagreeing with you, but your analogy is not the best. Driving is a privilege not a right, and drivers use public roads that are subject to regulation. People can avoid seat belt laws by walking, or by driving only on private property. They can't avoid a reckless sex law by only having sex in a private residence.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#7)
    by Talkleft Visitor on Tue Feb 15, 2005 at 07:59:50 PM EST
    Pure idiocy!! They just can't think of enough ways to put people in jail can they. They must get off on it.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#8)
    by Talkleft Visitor on Tue Feb 15, 2005 at 08:12:45 PM EST
    Once you mandate, say, helmets for motorcyclists, or seatbelts for drivers, you've opened the concept of penalties for reckless sex. Same thing. Social costs borne by all of us. I think there is a difference here. If you don't wear a seatbelt and there is a car accident, the only person* who is going to be seriously injured will be yourself. If you have reckless sex, there is a chance you might get an STD, but there is also a chance that the person you had sex with might get an STD as well - a 3rd party is also affected which I believe is a key difference. Having said that I disagree with this kind of law, if you have an STD and it can be established that you passed it onto someone else, then I have no problems with criminal penalties. If no disease is passed on, I don't think it should be criminalised as I can just imagine someone going after two 16 year old virgins who are having (unprotected) sex with each other for the first time. While it is stupid that they don't use a condom, I don't think it should be criminal. *I have heard of cases that a person not wearing a seat belt in a car crash can cause injuries to another person in the car (ie passenger not wearing a seat belt is knocked out the seat due to the force of the crash and their body/body part collides with the driver), but I am not of aware of serious injuries.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#10)
    by Johnny on Tue Feb 15, 2005 at 09:11:25 PM EST
    I guess I fail to see where any legislation has ever eliminated unwanted behaviour. Humans are biologically ready for sex at puberty, it takes education to make them psychologically ready. No amount of mandated morality (and thats what this is, thinly veiled behind a public safety plea) will ever change 3 million years of evolution. And what about STD's that a condom is useless against? This is ignorant lawmaking at best. Will the perps have to register as a "sex offender"???

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#11)
    by Talkleft Visitor on Tue Feb 15, 2005 at 09:46:32 PM EST
    How about feeding your family too much or perhaps too little resulting in obesity and diabetes on one hand and starvation and anemia on the other. God, think of the social costs of diabetes and care costs for anemia. We should finally remove STD's from the purview of public health. Perhaps then the social stigma that attaches to this linkage will finally disappear, a social stigma that in fact ensures non-compliance with treatment and prophylactic measures.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#9)
    by Talkleft Visitor on Tue Feb 15, 2005 at 11:17:25 PM EST
    And just how in h**l's seven bloody circles would such a thing be prosecuted? Bwahaha...

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#12)
    by Talkleft Visitor on Tue Feb 15, 2005 at 11:26:44 PM EST
    "We need to stop looking to the criminal justice system to cure every conceivable social ill." Good point, and I generally agree- we have too many laws already. but I do think it is criminally negligent for someone with Aids knowingly having unprotected sex. That is negligence, not at all unlike sending an employee out in a truck with no brakes.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#13)
    by Talkleft Visitor on Wed Feb 16, 2005 at 12:04:10 AM EST
    Gerry: Colorado's Senate Bill 017 makes no distinction between protected and unprotected sex. It just criminalizes sex, period. And it is very unlike your analogy. Someone driving a truck with no brakes is going to get into an accident the very first time he or she tries to stop at an intersection. Someone with HIV could continue to have unprotected oral sex for the rest of his or her life and never infect anyone, because the risk of oral transmission is almost zero (the only documented cases of oral transmission are from people who were also in other risk categories, such as hemophiliacs, IV drug users and people who have unprotected vaginal or anal sex).

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#14)
    by Talkleft Visitor on Wed Feb 16, 2005 at 03:44:32 AM EST
    Sorry guys, but you leftists are every bit as guilty as the right wingers are. Every leftist believes in solving social ills via the criminal justice system. I guess it sucks when your ideological opponents use the same tactics as you, eh?

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#15)
    by kdog on Wed Feb 16, 2005 at 06:34:15 AM EST
    Stupidest idea ever. That's all I can say...stupid, stupid, stupid. We cannot create a Utopia through criminalizing everything we don't like about life. Disease is part of life. Protect yourself, don't loof to the state to be your life long nanny.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#16)
    by txpublicdefender on Wed Feb 16, 2005 at 06:40:03 AM EST
    Please tell me there is no chance of that Colorado law passing. That is the most ridiculous thing I've ever heard. Does it apply to married people? Because I know several HIV positive people who are married and their HIV negative spouses have chosen to have sex with them. They always use condoms. It seems to me that if someone wants to have sex with someone who they know is infected with HIV, then that is his or her business. I also don't see how it is constitutional. The Supreme Court has pretty much said you cannot criminalize private, consensual, adult sexual behavior.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#17)
    by Talkleft Visitor on Wed Feb 16, 2005 at 07:50:41 AM EST
    txpublicdefender-- time will tell. It's in committee right now. Jenniver Veiga, the representative whose district covers the majority of Denver's densely gay neighborhood, has come out against it. It would apply to married couples, unmarried couples, everybody. Go to my web site, I have a link to the text of the bill.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#18)
    by Che's Lounge on Wed Feb 16, 2005 at 07:54:24 AM EST
    To Ayres and Baker: Fornication Under Consent of the King YOU!

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#19)
    by Talkleft Visitor on Wed Feb 16, 2005 at 09:30:36 AM EST
    So does it stop with STDs? How about prosecuting parents because their kid transmitted a disease to another kid at daycare? How about nailing all those disease-ridden co-workers who give me colds? The possibilities are endless! And we could guarantee that the prisons would be full, more prisons would be built, every little redneck town in Texas would be able to provide prison employment to its citizens.... What a country!!!!

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#20)
    by Talkleft Visitor on Wed Feb 16, 2005 at 12:34:44 PM EST
    Classical Liberal: This is not a right-wing issue. Ian Ayres is defenitely no right-winger. My criminal law professor was Prof. Coughlin at UVa. She's been pushing for legislation like this for a long time, and she's quite clearly left of center.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#21)
    by Talkleft Visitor on Wed Feb 16, 2005 at 04:10:31 PM EST
    "Gerry: Colorado's Senate Bill 017 makes no distinction between protected and unprotected sex. It just criminalizes sex, period." That's just not true, at least, to my layman's eyes. Section (b) provides the 'affirmative defense' of having alerted the partner to the condition. That partner doesn't have to be a marriage partner, btw. It does not 'criminalize sex' -- it criminalizes not telling a sex partner about positive HIV tests. Whether or not a condom is used is not pertinent in the same way that condoms are not absolute proof against the possibility of contagion or pregnancy.

    Re: Debate: Should Reckless Sex be a Crime? (none / 0) (#22)
    by Talkleft Visitor on Wed Feb 16, 2005 at 04:16:09 PM EST
    Sorry to repeat, but this top-of-comments posting is FALSE. (I'm not a lawyer, but it seems pretty straightforward). "The Colorado General Assembly is considering a law that would outlaw any sexual activity by someone who has HIV, regardless of informed consent," Michael, you probably misunderstood. But section (b) SPECIFICALLY provides exemption for informed consent. Text of CO bill (short)

    Debate: Should Reckless Sex be a Crime? | 22 comments (22 topical)