The Dignity of Risk

In my guest column yesterday on Justia, I discussed “The Safer Sex in the Adult Film Industry Act,” an initiative approved by Los Angeles County voters that will mandate the use of condoms on adult film sets.  As I discussed in the column, if viewed as a content-based restriction of non-obscene speech, the Act cannot survive strict scrutiny.  In my view, the Act also visits serious dignitary harms on the workers of the adult film industry.  Required condom use, I suggested, is problematic because it deprives workers in the adult film industry of the “dignity of risk.”

The “dignity of risk” is a phrase that grew out of the experience of those who advocated the deinstitutionalization of the developmentally disabled during the 1970s.  Today, the phrase is often used by those who advocate allowing elderly patients to continue to live independently as long as possible.  At its core, the concept reminds us that part of the richness of the human experience is the ability to make decisions with the information we presently have, and to move on.  Sometimes, we’ll succeed, and other times we will fail.  That’s just life, and it is part of being human.

As a philosophical concept, I believe the “dignity of risk,” has particular salience where the government seeks to regulate consensual sex acts.  Of course, the law generally protects individuals from taking every manner of risk known to man.  Seatbelt laws, helmet laws, and vaccination laws deprive individuals of the ability to take certain risks, and few people oppose these types of regulation.

But sex is different, in part because the ability to seek consensual sexual gratification is a human dignitary interest of the highest order.  In the column, drawing on an essay by Professors Ian Ayres and Katharine Baker, I offered a hypothetical statute that would mandate condom usage in every sexual encounter unless and until the couple married.  Putting to one side the fact that not every couple desires to marry or yet has a right to marry, the hypothetical statute would be abhorrent because it would deprive individuals of the dignity of risk in their sexual lives.  

The risks associated with sexual activity should not be understated.  Pregnancy, communicable disease, and perhaps even death may well occur.  But sexual activity also brings with it the potential for some of humanity’s greatest joy, including allowing one’s self to be completely vulnerable to another person.  Or, in the words of Justice Kennedy, “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”  Condom use therefore, reduces the negative risks associated with sexual activity, but it might also diminish the possible richness of the human experience.

For these reasons, I am tremendously skeptical of any governmental attempts to mandate condom usage.  There is inherent dignity in enabling individuals to determine the types of risks they are willing to accept in their sexual lives.  Sometimes this may mean using a condom, and other times, it may mean accepting a certain amount of vulnerability.  The individual and not the government should be able to navigate these types of sexual risks.  

It bears noting here, that at least in heterosexual sex, women may bear more of the risk in deciding to have sex without a condom.  Only the woman may be become pregnant and in some instances, she may be more susceptible to communicable disease.  Respecting women’s dignity, it seems to me, requires acknowledging their ability to navigate these risks on their own terms.  Indeed, to the extent that mandatory condom usage may be seen helping and empowering women, a few prominent women in the industry have said that the regulation might actually cause them greater physical harm.  For example, the presence of condoms may cause the sex to be much more abrasive, and thus more likely to damage the women’s genital mucosa. 

One response is that whatever the validity of these concerns, they must yield in this context because adult film stars are engaged in a commercial venture.  They are not seeking to experience human joy, but are merely seeking a paycheck.  Just as the government can require that firemen wear masks, surely the government can require that adult film stars wear condoms.  Adult film stars are free to do whatever they want off the screen, but on camera, they need to wear protection. 

The problem with this critique, however, is that adult film stars provide a commercial service that is itself different from other types of commercial services, precisely because the service is sexual.  Viewing adult films may be the only source of sexual gratification for some individuals, who, for myriad reasons, do not have physical sexual contact with others.  In other words, the fact that adult film stars provide a commercial sexual service means that there is an even greater danger that government mandated condom use will deprive some individuals of sexual gratification—an interest, I have argued, is a human dignitary interest of the highest order.  The film industry tacitly acknowledges this fact when it maintains that many of its customers will not purchase films that contain condoms. 

The commercial nature of the sexual activity, in my view, is therefore not enough to rebut the presumption that governmental regulation of consensual sex is nearly always problematic.  As Martha Nussbaum has argued, our “insecurity about sex and the lack of control involved in sex” often causes governing majorities to constitute themselves as a dominant group of sexual “normals,” and others as a group of sexual deviants.  The deviants, in turn, become not only the subjects of regulation, but also the repositories of shame.  I do not believe that adult film stars are sexual deviants.  And like the rest of us, they are entitled to the dignity of risk in their sexual lives, commercial and otherwise.