Mary D. Fan, Regulating Sex and Privacy in a Casual Encounters Culture
Comment by: Jason Schultz
PLSC 2011
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1796534
Workshop draft abstract:
The regulation of sex and disease is a cultural and political flashpoint and persistent problem that law’s antiquated arsenal has been hard-pressed and clumsily adapted to effectively address. The need for attention is demonstrated by arresting data – for example, that one in four women aged 14 to 19 has been infected with at least one sexually transmitted disease (STD), that managing STDs costs an estimated $15.9 billion a year, and that syphilis, once near eradication, is on the rise again as are HIV and other STDs. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. Controversial proposals have circulated, such as mass HIV screening for everyone aged 13 to 64, STD testing in high schools, mandatory HIV screening, strict liability in tort for transmission, and criminalizing first-time sex without a condom. The article argues that a less intrusive, more narrowly tailored and efficient avenue of regulation has been overlooked because of the blinders of old paradigms of sex and privacy.
The article contends that we should shift our focus away from the cumbersome costly hammers and perverse incentives of criminal and tort law and focus on adapting privacy law and culture to changes in how we meet and mate today. Information-sharing innovations would better deter without as much intrusion and avoid perverse victim-chilling and incentives against acquiring knowledge or seeking help. Turning to adjusting privacy law rather than criminal and tort law would better help safeguard sexual autonomy and ameliorate the information deficit in the increasingly prevalent casual sex culture and Internet-mediated marketplace for sex and love.