Ian Ayres & Katharine Baker bring up the problems of unprotected casual sex, and propose a perfectly sensible law to deal with these moral transgressions.

Unprotected first-encounters are correlated with pregnancy. The same recklessness that causes women to overlook the risk of pregnancy can also lead them to overlook whether the man has truly agreed to father a child.

Illegitimate children cost this country billions of dollars in welfare and child support. Men who unintentionally or unwillingly become fathers may lose up to 1/3 of their pre-tax income for eighteen years supporting children of a woman they had sex with only once.

A new crime of “reckless sexual conduct” should target unprotected first encounters. To convict, prosecutors would need to show beyond a reasonable doubt (i) a first-time sexual encounter between the defendant and the victim; and (ii) no use of birth control. The defendant would then have the opportunity to prove, by a preponderance of the evidence, that the victim consented to potential fatherhood.

When pregnancy happens early in a relationship, female misperception is a major cause. Giving women a new incentive to use birth control in first-time sexual encounters should significantly reduce the risk of unwanted pregnancy. The very act of pausing to use birth control should increase deliberation and communication. Declaring fertility will reduce the number of unwanted pregnancies, and increase the percentage of voluntary child support.

The crime of reckless sexual assault would also be a powerful prosecutorial tool for the thousands of child support cases that are simply unfair under current law.

Proof of this type of reckless conduct should be sufficient to shift the burden to women to prove consent. The message to women is not necessarily to forego one-night stands, but rather to use birth control or communicate enough so that you can trust your partner.

The new crime of reckless sex would send a clear message that society can punish reckless behavior because it is physically and emotionally damaging to uninformed men and unwanted children.

We are all hurt by a world in which sex is reduced to a base, non-communicative physical act. People on the right and the left side of the political spectrum can agree that extremely casual, unprotected sex does little good for anyone and has the potential to do much harm.

A crime of reckless sex, by encouraging women to protect their sexual partners from disease and pregnancy, can simultaneously encourage women to deliberate and communicate in a way that promotes public health and greatly reduces unwanted pregnancy.

They have drafted a model statute (just 200 words) expressly codifying this new crime. In a forthcoming law review article in The University of Chicago Law Review, They provide a more in depth defense of the statute.


Or maybe I'm just parodying a couple of idiots.

edit: I was partially inspired by this hilarious Something Awful article which called pregnancy "the gravest STD of them all".

edit2: I should also say (seriously) that I vehemently disagree that casual sex does little good. Sex is good exercise and emotionally rewarding. On top of that it's the best anti-depressant ever.