Yes Doesn’t Mean Yes

The blogosphere has been lighting up for the last few weeks over California’s passage of a “Yes Means Yes” law, which basically says that only affirmative consent qualifies as consent and that this consent has be obtained at every phase of any sexual encounter.

The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.

“Lack of protest or resistance does not mean consent,” the law states, “nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”

California’s Legislature approved the measure last month, with broad support. But while victims’ rights advocates have welcomed the new standard, the law also has its critics, who say its requirements place too much burden on the accused.

You can guess where most people have landed on this subject. Liberals are praising it as a step against a supposed epidemic of sexual violence on campus (sexual violence on campuses is depressingly real, but the much-touted “one woman in five” stat is an overestimate and in conflict with the government’s own numbers). Many conservatives and libertarians are critical because they see it as canting the field against the accused and an intrusion into people’s private behavior.

Probably the worst commentary on this belongs to Ezra Klein. In his first article, he admitted that “Yes Means Yes” is a bad law but said it was necessary to deal with the problem of campus rape. You can check Conor’s response here. Klein then doubled down with some musings about the legal system which was inaccurate, to say the least.

The thing is, I think much of the debate is missing the point. Whether “Yes Means Yes” is a good law or a bad law, it’s addressing the wrong problem. The problem is not that we have an unclear definition of consent; the problem is that these cases are being handled by universities at all.

To call campus judiciary systems a kangaroo court would be an insult to marsupials. You can read here about the details of a woman who says her boyfriend, during consensual sex, beat her, choked her and anally raped her. When she tried to use the campus judicial system, they allowed him to reference a supposedly exculpatory video, but she was never allowed rebut his testimony by showing the video. They made a big deal over her months-long delay in bringing charges, but didn’t allow her to explain why she delayed (she wasn’t going to bring charges until she found out he had assaulted other women). They were not allowed to consider that he’d been previously found responsible for similar sexual misconduct because the cases had been mysteriously re-opened.

This is not surprising to anyone who has been in academia for long. Campus judiciary systems are frequently a joke. They use rules of evidence made up on the fly, they are usually run by students, staff and/or faculty who have maybe watched an episode of Matlock. The problem is not that they don’t have a clear definition of consent; the problem is that they don’t know what the hell they are doing.

The system is little better than a random number generator. Often, women are subjected to a ridiculous process that leads inevitably to exoneration. But, on occasion, it works the other way and men are railroaded and slimed. There’s no logic or reason to it. The cases that result in men being unfairly kicked off campus are frequently far weaker than the ones that have a campus jury acquitting.

Campus justice systems should stick to what they’re good at: exonerating students who have cheated on exams.

Let’s take a step back for a moment. I have read the details of many cases in which innocent people were convicted of crimes they didn’t commit, often spending decades in prison or on death row. The one thing that jumps out at you, over and over, is the tunnel vision that can grip law enforcement and prosecutors. Once they have the idea that X committed the crime, they begin to see everything in that light. Exonerative evidence is explained away or ignored; confirming evidence is believed and touted. And while academics like to think of themselves as floating loftily above confirmation bias and rushes to judgement, they are just as susceptible to it as anyone else. People tend to decide questions before they have all the evidence. That’s human nature.

The difference is that our legal system has safeguards to try to stop the runaway train of presumed guilt: an adversarial lawyer system, the right to confront witnesses, proof beyond a reasonable doubt, etc. It doesn’t work perfectly, but it works well. Most campus systems have none of that. To the extent that they do, they are trying to get rid of it. In fact, the Justice Department has been pressuring campus legal systems to move toward “preponderance of evidence” and other shortcuts.

The result is that there are few safeguards against a campus judiciary board deciding in favor of whatever their initial conclusion was. If they thought the guy was innocent, they’ll find him innocent. If they think he’s guilty, they’ll decide he’s guilty. How does “Yes means Yes” address that?

It doesn’t. What this really is about is getting a foot in the door for something radical feminists have wanted for a long time: a standard of “enthusiastic consent” to determine the line between sex and rape. According to these theorists, the only time sex should happen is when the woman is eager for it. Anything else is a varying degree of rape.

But under this standard — and to some extent under the standard of “yes means yes” — the vast majority of sex would qualify as rape. When discussing this on Twitter, one of my followers tweeting back that she spent years in a relationship with lousy sex. She was not at all enthusiastic about it, but she consented. Another one pointed out that this would classify all sex work — from street walkers to sugar babies — as rape victims. Still another said she has never been one to initiate sex; but she’s up for it when her partner wants it. In fact, a lot of women’s sexuality is responsive. For a lot of women, what turns them on is being wanted. Dan Savage likes to say that men get aroused and start having sex; women start having sex and get aroused. Lesbians sometimes have difficulty with their sex lives because — whether by genetics or socialization — they have difficult initiating sex out of the blue. And millions of couples have engaged in drunk sex, perfunctory sex or “we’re trying to get pregnant and you’re ovulating so whatever” sex.

Some women (and some men) find the idea of asking for permission sexy. Many women don’t. The simple fact is that human sexuality — and especially female human sexuality — is way too complex for such simple rules. If you put a thousand women in a room and asked them what kind of sex they want, you would probably get two thousand answers. That’s fine. That’s human nature. But California has now taken a step toward codifying one of those answers into law.

I understand the basis for these changes. As Megan McArdle points out, the problem of campus sexual violence is confined to a small percentage of men who do this repeatedly and knowingly. Most women can tell the difference between a guy who misreads her signals and a guy who doesn’t give a shit about her signals (although the people who compile the “one in five” stat count both as assault). What “yes means yes” does is give the colleges more leverage in ejecting the real scumbags from campuses. They’ll no longer be able to waffle and warp when a committee can just say, “Did you ask if she wanted to have anal sex?”

The problem is that 1) this is unlikely to work. Rapists and assaulters will continue to lie and claim that consent was given when it wasn’t. It will just boil down to a more precise version of “he said — she said”; 2) authorities love vagueness in the law. They love it. If you give universities this kind of authority and discretion, it will be abused. It will simply reinforce what the college judicial boards want to do in these cases. If they’ve decided a man is guilty before hearing the evidence, this will just persuade them all the further. And if they’ve decided he’s innocent, this won’t dissuade them. Only a system set up like our current legal system — with witness confrontation, representation and a presumption of innocence — can get close to the truth.

That’s, of course, assuming that the colleges even get the implementation of this law right. We’re now seeing that college regulations are showing up as poorly thought out and badly written, even beyond the bad ideas of legislatures and federal agencies. Michigan’s sexual assault policy is so badly written it makes refusing sex or criticizing someone sexually an incident of sexual violence. Ohio State’s policy regards sex with the elderly or disabled to be assault. I mean, it shouldn’t surprise us that the Buckeyes and Wolverines would fumble the ball like this. But come on. These laws read like they were written by people who’ve never had sex.

Here’s the sexual assault policy I would put in place on college campuses:

1) If someone claims to have been raped or sexually assaulted, this will be handled by the police. As bad as the police are, they’re not a college judiciary committee. A lot of people think this isn’t enough. They want accused rapists kicked off campus so that the victim doesn’t have to live in the same dorms or go to class in the same buildings as him. OK:

2) If a student is the target of a criminal investigation or proceeding, he will be suspended from campus until the case is resolved. He will be allowed to take online courses toward his degree until if/when he is convicted. Even if the charges are dropped, the University will prevent the accuser and accused from living in the same dorm or taking the same classes (as much as practicable). For both their sakes.

Harsh? Yes. But it puts these cases back into the realm of reality where charges, claims, counter-claims and evidence is being handled by people who do this for a living not some psychology professor with an axe to grind.

Sexual violence in our society is down. From the heights of the 1970’s and 1980’s, it has fallen 60-80%, depending on which stats you believe. But it is still too high. A couple of hundred thousand women are sexually assaulted or raped every year. We should do something about that. And to some extent, we have (see 60-80% drop in violence rates). But I agree we should do more. And college campus are a good place to start since most sexual violence victims are under 30.

But this isn’t what we should do.

I agree with what Elizabeth Nolan Brown has been saying: if we really want to do something about sexual violence, let’s start with testing the hundreds of thousands of untested rape kits that are lying around the country. Let’s get states to stop forcing women to pay for their own rape exams, as Louisiana just did. Let’s punish everyone who engages in sexual violence, whether they’re an obscure college student or a member of our political elite.

But let’s not take legal shortcuts based on the rantings of radical feminists. That way lies more misery and no progress.

Comments are closed.

  1. richtaylor365

    I totally disagree with your sexual assault polices, they run counter to every judicial tenet concerning due process the rights of the accused. Whatever happened to “innocent until proven guilty”? I suggest you read;

    http://www.amazon.com/Until-Proven-Innocent-Correctness-Injustices-ebook/dp/B001FA0SPG/ref=sr_1_2?s=books&ie=UTF8&qid=1415029357&sr=1-2&keywords=duke+lacrosse+scandal

    You are correct in your assessment of these campus judiciary panels, the man accused does not stand a chance. They do not even use the laziest standards of a “preponderance of evidence”. If 1% of the evidence leans toward a crime but the other 99% lean towards a consensual act, they still kick the man out of school, just to be safe, some justice.

    When it comes time to send your son to college, a son that has worked his ass off, applied himself and got in to his number one choice, the college of his dreams (and you are paying a king’s ransom to get him this degree), then you will understand how important it is and why he does not deserve to get railroaded on a whim.

    That choice of online classes is a joke. His very absence from school condemns him, and perspective employers gets transcripts of his classes, how is he going to explain this gap on job interviews, and why should he have to?

    The police should handle all criminal allegations (it is a shame that you have such a low opinion of them, they are experts in this field and know what hurdles have to be jumped/what elements must exist for a criminal prosecution, not leaving it up to some man hating Women’s Studies professor).

    The wheels of justice turn slowly in these matters and there is no greater obstacle than a “he said/she said” case, but until sufficient evidence materializes so that a legitimate case can be put together and presented to the DA, a minimal amount of interruption is necessary and fair for all involved.

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  2. Hal_10000 *

    Good points, Rich, but …

    Innocent until proven guilty applies to our criminal system. If I get accused of a crime, my boss can fire me, no proof of guilt required. No one has a right to be on a college campus.

    The wheels of justice turn slowly in these matters and there is no greater obstacle than a “he said/she said” case, but until sufficient evidence materializes so that a legitimate case can be put together and presented to the DA, a minimal amount of interruption is necessary and fair for all involved.

    I agree. The standard I support is that someone may be physically barred from campus if there is a criminal proceeding against him (in a criminal court, not a campus kangaroo court). That would mean being indicted and that would apply to more than just sexual assault. It would also include people accused of theft or murder or what-have-you. If my son were arrested and under indictment for committing a crime, I would not expect a university to allow him on campus until he was acquitted. I also have a daughter. Would I want her to be sharing a dorm with an indicted rapist?

    The standard that universities are moving toward — with encouragement from Obama — is that someone can be expelled based on the accusation alone and they can never come back. That’s a far cry from what I’m proposing.

    Regarding the link: I have written and tweeted about the Duke case before. While they were under indictment, I think it was entirely appropriate to not have them on campus. For all we knew at the time, they were guilty. We had no way of knowing, at that stage, that Mike Nifong was a lying shitbag who had built his case entirely around the shifting testimony of a mentally-ill serial liar.

    I also think it was entirely appropriate to restore them to campus once those charges were dropped. And I think it would have entirely appropriate for them to sue the shit out of Mike Nifong for dragging it out and defaming them for many months after it became clear that he had no case. It was clear very early on but he wanted to grandstand. Unfortunately, he enjoys sovereign immunity.

    Which gets us back to why I sometimes have a low opinion of the criminal justice system.

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  3. grady

    I have to agree with Rich on this. Your presumption of guilt is too high. You cannot kick a man off campus based on an accusation. Seems like a girl can use this as a weapon against any guy she does not like. Competing against a guy for a spot in med school/law school/grad program of your choice? Make an accusation. It only takes a good story. By the time you can prove she is lying, the opportunity is gone. And if the criminal system does not punish women for false acccusations, what chance does a university system have for doing so?

    If she is scared or doesn’t want to have to be around the guy, then she can make a case for a restraining order. They don’t take much to grant & the guy has a means of defense.

    Keep these cases in the hands of the police. I completely agree that this should be away from kangaroo courts. There is a criminal process that works much of the time because it trys to protect the accused and the accuser.

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  4. Hal_10000 *

    Grady, see my comment above. I shouldn’t have said “investigation” in my post. I would think indictment would be necessary.

    Also, keep in mind an accusation can already ruin someone’s life. But the false accusation rate is very low (not the 2% the feminists claim, but likely somewhere in the 10% range).

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  5. richtaylor365

    If I get accused of a crime, my boss can fire me, no proof of guilt required. No one has a right to be on a college campus.

    False analogy, if anything the student is the employer, paying the college a salary for a specific service, an education.

    The standard I support is that someone may be physically barred from campus if there is a criminal proceeding against him

    Alright, I’m glad you clarified that because your post was ambiguous. Once the cops have completed their investigation and found sufficient grounds for an indictment, then yes, I can see the school suspending him. But not until then and certainly not while some estrogen induced school panel is sharpening their knives.

    For all we knew at the time, they were guilty.

    Not to anyone that was paying attention and did not have a preconceived agenda. One of the 3 had witnesses and evidence ( a time and date stamped receipt) that he wasn’t even at the party, and the other 2 had a number of witnesses that gave statements alleging no sexual assault. But the school (and apparently you) convicted them based solely on the constantly changing statements of Crystal Mangum, and nothing else.

    he enjoys sovereign immunity

    Not sure how much he is enjoying anything, since he was disgraced, forced to resign, got disbarred, served some jail time, had to declare bankruptcy, and will be followed for the rest of his life to garner any wages he makes.

    But the false accusation rate is very low (not the 2% the feminists claim, but likely somewhere in the 10% range).

    I would like to see some sources to back that claim up.

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  6. Hal_10000 *

    I would like to see some sources to back that claim up.

    Here you go. leftover link that I didn’t fit into the post:

    http://www.slate.com/articles/double_x/doublex/2014/09/false_rape_accusations_why_must_be_pretend_they_never_happen.html

    That’s Cathy Young, who is regarded as a heretic by most feminists as was named by Marcotte as one of the “enemies” of women’s rights. Which means Young has done her homework and Marcotte hasn’t.

    Not to anyone that was paying attention and did not have a preconceived agenda. One of the 3 had witnesses and evidence ( a time and date stamped receipt) that he wasn’t even at the party, and the other 2 had a number of witnesses that gave statements alleging no sexual assault. But the school (and apparently you) convicted them based solely on the constantly changing statements of Crystal Mangum, and nothing else.

    I based that on the indictment that was handed down and what turned out to be false statements from the prosecutors. As time went on, thought, it became obvious something fishy was going on. It’s pretty amazing to read about it now because Mangum’s fellow stripper immediately said there was no way Mangum was raped and the hospital found no evidence of it. I mean, the evidence that this was bogus was there from day one.

    The legacy is that she’s now a convicted murderer while one of the accused players is going into law because he realizes how lucky he was to have good lawyers and wants to help other falsely accused people.

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  7. richtaylor365

    From your own link;

    Yet the truth is even knottier than these statistics suggest. The answer to “How common are false allegations?” depends largely on how false allegations are defined. Do we count only cases in which a police report—or a complaint to some other official authority, such as a college administrator—is shown to be deliberately false? Do we include informal, word-of-mouth charges like the one against Oberst? What of he said/she said cases in which the truth is never known?

    And since I think that percentage even higher than the 10% you quoted, my first google search found this;

    http://www.foxnews.com/story/2006/05/02/false-rape-accusations-may-be-more-common-than-thought/

    Is it the new 1-in-4 statistic?

    I don’t mean the widely-circulated ‘1-in-4 women will be raped in their lifetime’ but a statistic that suggests ‘1-in-4 accusations of rape are false.’
    —-
    If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources.

    And BTW, I’m glad you shot down that ridiculous ,”One in five females will be assaulted in her college years”, what horseshit;

    http://www.nationalreview.com/article/388502/rape-epidemic-fiction-kevin-d-williamson

    Much of the scholarly literature estimates that the actual rate is more like a tenth of that one-in-five rate, 2.16 percent, or 21.6 per 1,000 to use the conventional formulation. But that number is problematic, too, as are most of the numbers related to sexual assault, as the National Institute of Justice, the DoJ’s research arm, documents. For example, two surveys conducted practically in tandem produced victimization rates of 0.16 percent and 1.7 percent, respectively – i.e., the latter estimate was eleven times the former. The NIJ blames defective wording on survey questions.

    So if we use the lower estimate, it shows that roughly 2 out of a 1000 college females are assaulted (whatever the hell that even means) in college. 2 too many of course, but it brings a little perspective to this overly used prog dog whistle.

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  8. Hal_10000 *

    And since I think that percentage even higher than the 10% you quoted, my first google search found this;

    The one they quote is the Kanin study. it’s a major outlier. It was done of one police department that was later condemned for their rape investigation methods. The FBI study is a little more thorough but it also has a bias: it only considers cases where the identity of the suspect was in doubt (DNA testing is not done for all rape cases).

    Most studies show around 10%, but it’s really really hard to get good numbers on this (more here: http://www.bloombergview.com/articles/2014-09-19/how-many-rape-reports-are-false) especially now that people like California are trying to blur the lines. A lot of the time, there is an agreement that sex took place, but a disagreement about the context, what was consented to, how much alcohol played a role, etc.

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