http://www.mensnewsdaily.com/archive/h/h-misc/hribernick0301105.htm

March 11, 2005
by John Hribernick

Yale Law School professor Ian Ayres and Chicago-Kent College of Law
professor Katherine Baker want to send men to jail if they don't wear a
condom. In a report they recently published they propose to make "reckless
sexual conduct" a crime punishable by imprisonment. While some laws already
exist to criminalize the intentional or reckless transmission of a disease
to a sexual partner, several aspects of their proposal raise serious
questions about its academic integrity. Most troubling is the discriminatory
way in which only males would be targeted for punishment.

Ayres and Baker leave little doubt that only men would be prosecuted for
reckless sex. They state that "...women would rarely, if ever, be prosecuted
under such a statute." According to their report: "A defendant would be
guilty of reckless sexual conduct if, in a first sexual encounter with
another particular person, the defendant had sexual intercourse without
using a condom." The punishment could be six months in prison.

Ayres and Baker are not simple misguided do-gooders. They are law professors
and seasoned researchers who heavily cloak their argument in statistics,
legal concepts and academic jargon. Yet having read their report and
discovering what they are actually proposing, the influence of radical
feminist ideology and its vicious anti-male bias become easily evident. At a
time when there is debate about whether a remark by the president of Harvard
(that some say show his gender insensitivity) should cost him his job, it's
ironic that professors Ayres and Baker feel free to propose an extremely
prejudicial law endangering the social liberties and constitutional rights
of only the male gender.

The professors first claim their proposal will reduce or eliminate sexually
transmitted disease (STD). No one would disagree that STD causes a great
deal of suffering and its elimination is certainly a laudable goal. However,
if unprotected sex is to be a crime, a rational approach is to punish
consenting males and females equally. This report departs sharply from that
fair and just approach. Under this proposal, females are absolved of
virtually any legal responsibility to control disease. This fact alone
suggests a deep-rooted gender bias that calls into question the credibility
of their argument. Given their claim to be protecting the public from
disease, and the seriousness of the consequences for men called for in this
proposal, it seems this is not an oversight but rather pure and simple
academic dishonesty.

Ayres and Baker then claim that their proposal can lead to a reduction in
rape. They speculate on how or even whether that would occur but in their
view it is a likely outcome. However, their entire argument is overshadowed
by what constitutes consent. They appear to take the feminist view that
consent can be present at the time of intercourse yet revoked by the female
at any time, perhaps hours or days later. In this context the argument for
condom use is irrelevant. In fact, the professors are careful to note that
not wearing a condom is evidence of non-consent but that wearing a condom is
alone not evidence of consent. Where does this leave men? This law leaves
them at increased risk of false criminal allegations with fewer due process
rights to prove their innocence.

This outcome is exactly what the professors claim is needed even though they
have no proof it will reduce rape. They dismiss convictions of innocent men
as an insignificant and acceptable problem and propose no corresponding
punishment to discourage false allegations. Rape is already a crime
punishable by far more serious consequences. It doesn't seem logical that
lesser penalties would create greater deterrent.

The true intent of the professors' proposal does not appear to be the
control of disease or directly reducing the number of rapes. Rather, it
seems to be increasing the conviction rate for accused males. A primary
rational given in their report for legalizing discriminatory gender-based
prosecution is their claim that "unprotected first encounters are also
correlated with coercion." According to an ABA eJournal article on the
issue, as in their report, Ayres and Baker firmly link their proposed law to
rape prosecutions

Their report states: "The crime of reckless sexual assault will also be a
powerful prosecutorial tool for the thousands of acquaintance rape cases
that are simply not winnable under current law. It represents a way to
partially overcome the "he said/she said" dilemma. Reasonable doubts can
remain whether an alleged acquaintance rapist raped, but there is often no
question that he engaged in unprotected, first-encounter sex." According to
the ABA eJournal article, Ayres says a crime of reckless sexual conduct
would be a lot easier to prove than rape and criminalization is needed to
reduce the "tragedy of sexual coercion."

The professors practically boast that this law is based on the Kobe Bryant
case and that their law would provide a means to convict men of something
even when there is no evidence of rape. Their report states: "Indeed, the 19
year-old's accusation *even if false * may have reduced the risk that
[Bryant] would spread a disease contracted in Colorado." Here the professors
go further than to ignore the sexual behavior of the 19 year-old girl who
may be spreading STD to men through her casual sexual encounters. They imply
it's permissible for her to commit a crime by making a false accusation. Is
this the kind of law they teach at Yale or Chicago-Kent?

It's likely the professors notice that the female in their example also
engaged in "first-encounter unprotected sex." However, there is no
condemnation or criminalization of her sexual activity because,
ideologically, the male is viewed as the problem.

The professors say that it's the male who should bear ultimate
responsibility for wearing a condom and thus only the male who should be at
risk of criminal prosecution and jail, even when the sex is consensual and h
e has no STD. They argue that lawful restrictions can be placed on behavior
that causes no harm because drunk drivers can be arrested even when they
cause no accident. Katherine Baker, appearing on the Glenn Sacks radio show
"His Side" used this analogy to defend singling out the male for
punishment.

The validity of this analogy would seem to be challenged by the fact that
both males and females are arrested and prosecuted for driving drunk.
However, let's indulge the professors. Imagine driving drunk is not illegal
and two professors propose to make it illegal. Their research indicates that
reckless drunken male drivers sometimes injure women. It also shows that
when a male and female are in a car together and there is an accident
involving alcohol the female tends to have more serious injuries than male.
They therefore propose to make it a crime for men to drive drunk. Women are
granted immunity from prosecution even if they injure a sober male passenger
while recklessly driving drunk. The two professors say they were motivated
to propose this unequal treatment because of the legal difficulties of
convicting a basketball star accused of rape.

For all its shortcomings, this comparison clearly shows such a proposal
would be a sophomoric way to approach the social problem of drunk driving.
Its one-sided punishments and its lack of equal concern for the social and
physical well-being of both men and women indicate it is driven by something
other than academics, science or law.

It therefore seems that the ideological problem for Ayres and Baker is that
consensual unprotected sex may involve no male predation and no female
victimization whatsoever. To resolve that dilemma they employ a fairly
unsophisticated trick. They simply define males as the problem and shift the
entire legal burden to men. This, in their view, eliminates the need for any
gender-equal criminalization no matter how many diseases or sexual partners
the female has and no matter her culpability in enticing the male into
unprotected sex or making false allegations after the fact.

They mount a potent but doomed ideological campaign to rationalize their
proposal's one-sided punishment of males. They relentlessly expound the
culpability of males and continually portray females as victims. The result
is an intellectual smokescreen behind which appropriate constraints on the
prosecutorial power of the state are eliminated and due process rights of
accused men are shredded.

The science they use to get you to accept the ideological view of men as
disease spreading sexual predators and potential rapists that need to be
regulated and punished can be summarized as follows: 1) The more sexual
partners you have the more likely you are to be infected with STD, and 2)
rapists don't usually wear condoms. That sounds more like common knowledge
than a scientific revelation. Ayres and Baker claim that by "minimally
regulating a small subset" of sexually active people (those who sleep around
a lot) STD and rape should decline. Since they view females only as victims
they require action and punishment only of males. The "small subset" that
they propose be regulated includes virtually every male but not one female.

The professors sneak their ideological finger onto the scales of justice in
another disturbing way. According to the report: "Consent to unprotected
intercourse would be an affirmative defense, to be established by the
defendant with a preponderance of evidence." This means that the male is
always guilty unless he can prove his innocence. Without witnesses, it would
difficult to prove you wore a condom. In fact, condoms do not always prevent
pregnancy. The professors' anemic case for turning the constitution on its
head in this instance fails as rational scholarship. It's a dangerous step
toward the police state marching right into your bedroom and your religion
and, as proposed, it's atrocious public policy.

In shifting the legal burden to men, Ayres and Baker propose to have all men
regulated as potential rapists and potential public health threats. Their
law attaches this legal stigma to men in each of their initial sexual
encounters. This very idea fails so many principles of American justice that
it should stand as a testament to the ideological corruption that pervades
this kind of academic research. Political or ideological propaganda, even
when espoused by so-called academics, is rarely the best information on
which to base criminal prosecution and broader public policy. These
professors' efforts would be better spent increasing unbiased education
about STD and rape rather than on demonizing men and building fallacious
arguments for anti-male gender discrimination under the guise of sound
public policy.

John Hribernick


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Men are everywhere that matters!





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