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.