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A Separate Crime of Reckless Sex (with Katharine Baker), 72 University of Chicago Law Review 599 (2005)


This Article attempts to make progress on the problems of both 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-time sexual encounter with another person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant by a preponderance of the evidence. As an empirical matter, unprotected first-time sexual encounters greatly increase the epidemiological force of sexually transmitted disease, and a substantial proportion of acquaintance rape occurs in unprotected first-time sexual encounters. The new law, by increasing condom use and the quality of communication in first-time sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.

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