A Separate Crime of Feminist Bigotry - John Hribernick - MensNewsDaily.com�

A Separate Crime of Feminist Bigotry

March 11, 2005



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by John Hribernick

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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 he 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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John Hribernick is a freelance writer from Edmonds, WA