, Bethany Stotts, Leave a comment

The condom has quickly come to symbolize health professionals’ push for “safe sex,” but Notre Dame Professor James P. Sterba suggests that the condom assume an important new role in the legal system: determining whether or not women have been raped. “So if you say in such an encounter, between two individuals, if the guy doesn’t use a condom, he gets a fine and three months, do you know what would happen?…What would that have done? Shocked men across this country,” he said.

Co-author of Does Feminism Discriminate Against Men?: A Debate, Professor Sterba argued that making male condom use mandatory for all first-time sexual encounters would greatly increase women’s freedom. “And of course what would have to happen on campus is the men would have to save those condoms in a book somewhere and it would be—but that’s fine! That’s fine!,” he said. He currently teaches Philosophy at the University of Notre Dame and has published works on “Affirmative Action and Racial Preference,” “How to Make People Just,” and “Understanding Evil: American Slavery, the Holocaust and the Conquest of the American Indians.”

When asked how he would determine fault or adjudicate “reckless sex,” Sterba responded that “It is a crime that the man, not wearing the condom, would be guilty of…The defense is he has overwhelming evidence that the woman freely consented.” Ironically, Professor Sterba argued at the meeting that feminism does not discriminate against men because women’s progress does not necessarily signify a loss for men. However, in this case he supported the “reckless sex” charge because under the law “[Men would] be more and more careful and women get more freedom when men are more careful” (emphasis added).

Debate opponent Carrie Lukas, the Vice President of the International Women’s Forum (IWF), noted that “feminists seem to recoil at this idea that a woman would ever make up an accusation of rape.” Lukas believes that women are capable of making false accusations of rape, especially if success in prosecuting a unique, stigmatizing charge became more plausible in the courts.

The movement to establish “reckless sex” as a crime was first launched by Law Professors Ian Ayres (Yale University) and Katherine Baker (Illinois Institute of Technology), who argued in 2005 that “A person would be guilty of reckless sexual conduct and subject to imprisonment of up to 6 months” and defendants can only prove “unequivocal” consent to the unprotected sex if they display a “preponderance of evidence.” In other words, under the “reckless sex” charge, men would be considered guilty until proven innocent.

Ayres and Baker justified such a measure as increasing sexual safety for both men and women by reducing the transmission of sexual diseases, and hope that the new crime would undo the legal difficulties underlying underreporting of rape—namely, that the accuser prove that the rapist used force, the threat of force, or intoxication to elicit sex—because “Giving men a new incentive to wear a condom in first-time sexual encounters should discourage the tragic lack of communication that often gives rise to the illusion of consent.” “Men who rape in recklessness, by not finding the time or compassion to discern a partner’s consent, rarely find time to use a condom,” write Ayres and Baker. The two professors believe it is just to place greater liability on the defendant (most likely male) because “This law protects those who are most likely to get hurt”—in other words, women—and “social science research” indicates that “few women make false claims.”

Bethany Stotts is a Staff Writer at Accuracy in Academia.