Search Results For codifying consent

Codifying Consent, Ctd

Andrew Sullivan —  Oct 16 2014 @ 11:58am

I haven’t weighed into the debate over California’s sexual consent law or the new regulations in many colleges, including my alma mater, Harvard, that defines any sex without vocalized continuous consent as sexual assault or rape. One reason is my lack of any real experience of male-female sex where the power dynamics can often be very different from gay sex. But what does concern me a great deal is the lack of any due process for the accused in these unfortunate and often deeply contentious circumstances. Mercifully, some of the faculty at Harvard – specifically the law school – have now risen up against what look to me like kangaroo courts, designed to instill fear into one gender alone. In an open letter, published in the Boston Globe, the law profs write:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. Here our concerns include but are not limited to the following:

■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.

■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.

■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.

Ezra Klein – in a remarkable column that we featured yesterday – actually defends the lack of due process as a positive aspect of the new regulations, because their inherent bias against accused men will create a climate of fear that is necessary to curtail male sexual violence and assault:

To work, “Yes Means Yes” needs to create a world where men are afraid … Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.

Jon Chait and Charles Cooke both note the profound illiberalism here – and it’s enabled by the pomo gender ideologues who now control most discussion of sex and sexual identity in the academy. But what’s also impossible to ignore is how the social left is now trying to micro-manage what goes on in the bedroom with almost as much assiduity as the social right – and to do so in order to target one gender alone.

When all men are regarded as potential rapists, and when you have bought into the argument that the patriarchy is so entrenched that only radically illiberal procedures to punish, stigmatize and shame them will suffice, you have embraced a new Puritanism almost as troubling as the old. Play out this scenario: If a judicial process were set up that assumed that all women reporting sexual assault and rape were liars until somehow proven truthful, there would be an outcry. But if an identical judicial process is established that assumes all men accused of sexual assault and rape are guilty until proven otherwise – with no due process allowed – that is, apparently, a progressive move.

And it may well be a progressive move; but it sure isn’t a liberal or fair one. This does not mean that I don’t take the issue of sexual assault and rape seriously. In fact, it’s precisely because I do take it seriously that I’d support laws and regulations that allow real justice to be done, in which the accused have some basic right to defend themselves. The rest is a function of a leftist academic culture in which men are somehow inherently a problem; and almost anything is justified to make sure their “privilege is checked” and their gender stigmatized. At some point, the sexism inherent in this needs to be confronted as well.

Codifying Consent, Ctd

Andrew Sullivan —  Oct 14 2014 @ 4:00pm

Amanda Taub defends California’s new “Yes Means Yes” law, arguing that it “emerged as a response to a status quo that has proved to be an all-too-powerful tool for sexual predators, because it enables them to claim to see consent in everything except continuous, unequivocal rejection”:

This week, a Detroit man murdered a 27-year-old mother of three named Mary Spears after she rejected him in a bar. Right now, a woman is in critical condition in a New York City hospital because a man slashed her throat on the street after she declined to go on a date with him. In April, a Connecticut teenager was murdered by her 16-year-old classmate after she turned down his invitation to prom. Stories like these (and there are others) should remind us that women have a lot of reasons to fear the consequences of saying “no.” That’s all the more reason why silence shouldn’t be presumed to be consent.

That argument in particular changed Ezra Klein’s mind. He now supports the law, even though it’s unlikely to be enforced very often:

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.

The Yes Means Yes law could also be called the You Better Be Pretty Damn Sure law. You Better Be Pretty Damn Sure she said yes. You Better Be Pretty Damn Sure she meant to say yes, and wasn’t consenting because she was scared, or high, or too tired of fighting. If you’re one half of a loving, committed relationship, then you probably can Be Pretty Damn Sure. If you’re not, then you better fucking ask.

Robby Soave and others fire back:

First of all: who is to say that “Yes Means Yes” will actually decrease instances of sexual assault? The law’s main function is to push colleges to investigate and adjudicate sexual assault based on a narrower set of standards and without recognition of established due process rights. Given the track record of campus rape trials, there is little reason to think colleges will excel here. I predict more lawsuits—from both accusers and the accused—and similar levels of sexual assault. The heavy hand of government does not automatically and instantly change culture in the manner that central planners envision. …

Klein’s do something at all costs approach is also an indictment of the modern left’s warped priorities and callous disregard for due process. Safeguarding the rights of the accused was once a cardinal virtue of civil liberalism. But for many so-called progressives, paranoia about sexual violence trumps all other considerations. They have much in common with the tough-on-crime conservatives of past decades, in that respect.

Freddie also goes after Ezra – and the elite media in general – for not addressing the law’s risks:

We know that the police state targets the poor. We know that false convictions are far more likely to happen to black and Hispanic men. We know those things. Doing away with the presumption of innocence will not mostly hurt privileged white frat boys. It will hurt poor people and black people the way that our judicial system always does. So if you, like Klein, want to be breezy and loose in your talk about the consequences of a law that many or most admit is badly flawed, fine. But let’s count those costs like adults.

And Judith Shulevitz stands up for the rights of accused rapists:

What’s happening at universities represents an often necessary effort to recategorize once-acceptable behaviors as unacceptable. But the government, via Title IX, is effectively acting on the notion popularized in the 1970s and ’80s by Andrea Dworkin and Catharine MacKinnon that male domination is so pervasive that women need special protection from the rigors of the law. Men, as a class, have more power than women, but American law rests on the principle that individuals have rights even when accused of doing bad things. And American liberalism has long rejected the notion that those rights may be curtailed even for a noble cause.

“We need to take into account our obligations to due process not because we are soft on rapists and other exploiters of women,” says [Harvard professor Janet] Halley, but because “the danger of holding an innocent person responsible is real.”

Meanwhile, Shikha Dalmia’s reaction to the law last week provoked this rant from Erin Gloria Ryan, under the headline “Consent Laws Are Ruining Sex, Says Writer Who Probably Has Awful Sex”:

First, the assumption that sex is a horny guy trying to convince a tired woman to lie there while he pumps away at her sex hole while she wonders to herself if this is what she really wanted is an assessment of heterosexual intercourse so grim that I feel a great deal of pity for the person whose life experiences have led to those conclusions.

That, McArdle points out, is not an argument; it’s just sex shaming:

When guys do this to them, left feminists easily recognize it for what it is: reactionary, misogynist bile spewed by angry people who couldn’t think of an actual argument. So why does Erin Gloria Ryan feel free to deploy it against a woman with whom she disagrees? Why didn’t her colleagues at Jezebel take her aside and say, “Hey, that’s not how we roll. We’re against sex shaming, remember?”

This is not the first time I’ve run into this idea that all’s fair as long as you restrict it to conservatives. Although the exact post seems to be lost to the mists of Internet time, I’ll never forget when a woman at a major feminist site accused me of holding the political opinions I do because — wait for it — I was trying to catch a man. Or the liberal men too numerous to count, or at least bother counting up over the years, who have hailed me with every misogynist slur you could imagine, and a few I’m sure you couldn’t.

Dalmia herself hits back at her detractors:

[I]n a WonketteJezebel gynocracy, discrediting someone’s (imagined) sex life = discrediting their argument.

When Limbaugh called Sandra Fluke, the Georgetown law student who wanted taxpayer funded contraceptive coverage, a “slut,” the whole feminist establishment rose in unison to condemn him—and rightly so. Ultimately, he was forced to do the decent thing and issue an apology. “I did not mean a personal attack,” he said. “My choice of words was not the best, I sincerely apologize to Ms. Fluke for the insulting word choices.” The question now is, can Gray and Ryan manage to rise to Limbaugh’s level? I’m waiting, sisters!

Codifying Consent

Andrew Sullivan —  Oct 7 2014 @ 7:29am


Shikha Dalmia argues that the California consent law ignores the realities of sexual encounters:

The truth is that, except in the first flush of infatuation, both partners are rarely equally excited. At any given moment, one person wants sex more passionately than the other. What’s more, whether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more “convincing.” And someone who requires convincing is not yet in a position to offer “affirmative” much less “enthusiastic” consent. That doesn’t mean that the final experience is unsatisfying — but it does mean that initially one has to be coaxed out of one’s comfort zone. Affirmative consent would criminalize that.

The reality is that much of sex is not consensual — but it is also not non-consensual. It resides in a gray area in between, where sexual experimentation and discovery happen. Sex is inherently dangerous. There will be misadventures when these experiments sometimes go wrong. Looking back, it can be hard to assign blame by ascertaining whether both partners genuinely consented. Indeed, trying to shoehorn sex into a strict, yes-and-no consent framework in an attempt to make it risk free can’t help but destroy it.

Jonathan Chait questions how much an affirmative consent law could accomplish:

It surely is possible to imagine that sex that comports with these new guidelines is sexy, or even more sexy than the kind most people have now. Yet one might find these ideas about reimagining sex attractive, as I do, while still having deep reservations about codifying them into law.

The fact that we need to change cultural attitudes about sex itself underscores the fact that cultural attitudes about sex lie well outside the contours established by the state of California. What percentage of the last decade worth of Hollywood sex scenes, if acted out between college students in California, would technically constitute rape? A majority? Ninety percent?

Deprogramming and reorienting societal ideas about sex is an evolutionary process. California isn’t merely attempting to set out to nudge the culture in this direction. It is reclassifying all sex that falls outside those still-novel ideas as rape. A law premised on this sort of sweeping, wholesale change is likely to fail.

Meanwhile, Danielle Citron argues that more laws are needed to deal with another area of sexual activity:

Why is it legal in many jurisdictions to disclose a person’s nude image in violation of that person’s expectation of privacy? A combination of factors is at work. One stems from the public’s ignorance about so-called revenge porn. As brave individuals have come forward to tell their stories, we are only now beginning to understand how prevalent and damaging revenge porn can be.

Another reason is that society has a poor track record addressing harms primarily suffered by women. It was an uphill battle to get domestic violence and workplace sexual harassment recognized as serious issues. Because revenge porn impacts women far more frequently than men and creates far more serious consequences for them, it is another harm that society is willing to minimize, trivialize, and tolerate. Although most people today would recoil at the suggestion that a woman’s consent to sleep with one man can be taken as consent to sleep with his friends, this is the very logic of revenge porn apologists.

The Best Of The Dish Today

Andrew Sullivan —  Oct 16 2014 @ 9:00pm

First up, the burning issue on everyone’s minds. Not Ebolisis – a strange pandemic in which the deaths of a handful of Westerners has caused an entire nation to brown its whites:


No, I mean the relative absence of wing-wangs on TV and the big screen. (All links in this post are NSFW, BTW.) Despite Trey Parker’s fascination with the remarkably few swinging dicks on Game of Thrones, there’s still an obvious double-standard for men and women. Boobs have long been everywhere, as the charming Seth McFarlane once reminded us at the Oscars; vaginas much less so – but still common in indie movies; bare butts are now ubiquitous. But even Lena Dunham only shows a somewhat comically deflated dick on the bathroom floor after her parents have an accident during shower sex. And in the most famous dick-shot in movie-history – although readers are more than welcome to correct me – it’s pretty dark and vague down there. 

But the pendulum seems to be swinging the other way, as this rather amusing chit-chat at TNR suggests. There’s a whole thread at Deadspin, it appears, called Athlete Dong, edited by a self-style “Dongbudsman” who features the unmissable, usually in spandex. (Yes, that was an hour down the drain this afternoon.) Then there was the great Jon Hamm package followed by the more recent jogging display by The Leftovers‘ Justin Theroux – and now some question whether Ben Affleck’s dick is in Gone Girl or not. And don’t forget the penis pioneering of Jason Segel. The Starz network is apparently in the lead, but

Showtime has also had their fair share of penises on display. One fellow in particular that comes to mind is Jody (Zach McGowan) on Shameless. Not only did we get a look, they even gave us a long close up. It was, shall we say, memorable. Overkill? Heck no! It was situational and it drove the plot, which is more than I can say for countless shots of female full-frontal nudity or breast shots.

The TNR writers have various points to make about this – is it feminism finally FTW? are dicks finally being treated as objectively as boobs? etc – but one factor seems obvious to me. The dick pic is what’s new. And the dick pic has begin to change the next generation’s views about views of wandering willies.

The Dish has long celebrated the wonderful, compassionate tumblr CritiqueMyDickPic (see here and here), as well as an art exhibit of such pics, and a YouTube called “Janet Looks At 89 Dicks“. And now the great Instagram account @thatlookslikeadick makes its Dish debut:

Screen Shot 2014-10-16 at 7.42.38 PM

But the existence of all these is not (just) a function of my own curiosity, but primarily a small sign of the legion of penises marching around social media these days. Sexting has broken the taboo – for men as well as for women. Except, of course, most dick pics sent on Tinder or Grindr or whatever’r are erect, while almost all movie/TV shots are extremely flaccid, even moments after orgasm. That’s where we have yet to venture on TV. Where have you gone, Lena Dunham? A nation turns its lonely eyes to you.

Earlier on the Dish today, we covered the pretty unforgivable lapses in treating Ebola cases in the US (and some truly foul electioneering by the GOP); we hailed a possible breakthrough in nuclear fusion and took issue with some whiny lefties over it; I had some real due process concerns about the new sexual consent law in California and Harvard (Conor FTW); and I noted a somewhat pathetic effort by the American bishops to re-translate Monday’s Relatio from Rome on welcoming gay people into the church in order … well, for us to feel less welcome. Plus: the latest liberal interventionist proposal for mission creep in the Syrian-Turkish-Kurdish Clusterfuck that Obama so foolishly got us into.

The most popular post of the day was Yes, This Is A Pastoral Revolution; followed by Codifying Consent, Ctd. And the most popular t-shirts publicizing the Election Day vote to legalize pot in Alaska, DC, and Oregon are here:


Buy the standard “Know Dope” t-shirt (seen on the left) here. Buy the DC one (on the right) here. That same design but with “Alaska” on it available here. And all you Oregonians out there, get your version here. Each version is just $20. All purchases help us keep this blog on the road. And don’t forget to email us a pic – with or without a dick – after your shirt arrives.

See you in the morning.

My “Scorn Of Feminism” Ctd

Andrew Sullivan —  Nov 18 2014 @ 4:45pm

Below is a bunch of reader commentary of the Dish’s recent coverage of gender-based debates like gamergate, catcalling, affirmative consent, and others. A dissenter gets the last word on #shirtstorm:

You have a tendency to hate Internet mobs even when they’re right. Matt Taylor’s shirt was staggeringly inappropriate for a professional workplace, particularly when he’s been tasked to be the public face of his organization on the day of its greatest triumph. He deserves the heat for thinking that was acceptable attire – no matter what the woman who made it for him says. Her opinion ought to be secondary to that of the women who had to work with him (and all the colleagues and supervisors who didn’t question that choice of clothing).

But you can prove me wrong: Wear a Tom of Finland shirt the next time you’re on Bill Maher’s show. Don’t let the culture police win!

Another writes:

Thank you for covering Gamergate. I was mostly unaware of the issue until you brought it up. Now I am beginning to understand its significance. Today, some clicking around on Gamergate brought me to two places that I think are telling about all of this. The first was someone disparaging you, and saying “there’s no way to use the phrase ‘creeping misandry’ and not be laughed out of the room.” The second was this screed by Daily Beast columnist and WAM supporter Samantha Allen. It’s opening lines are “i’m a misandrist. that means i hate men.”

Another reader on “why you can’t be a male feminist these days”:

I’m about the same age as you, Andrew. I believe in equal pay for equal work. I believe in women’s reproductive health, to include abortion without interference from the government, and that it should be part of a basic health insurance policy. I believe a woman should be able to do any job a man does (and as a former infantryman, that took some work on my part). I have several bosses who are women (some younger than myself) who deserve to be in their position and would do well moving further up the org chart.  I believe women should be free from sexual violence and perpetrators should be punished accordingly. In short, I believe everything classic feminism stood for to the best of my knowledge.

That said, there are so many people out there now (my Facebook feed is all about this) who follow what I consider a form of feminism that is exclusionary.

It is an all-encompassing worldview and everything, no matter how far afield, must fit into that worldview. The only thing I can compare it to is a real Marxist, if you’ve met one. Going to the bathroom to them is an integral part of the workers’ struggle (Marxists are the only people I’ve come across like this, so they are what I most easily compare it to). To hear them talk, I clearly have never had a consensual sexual encounter and must therefore be a rapist. At a minimum, I perpetuate the patriarchy and contribute to rape culture. This is non-stop wail I read everywhere I go online. Even though I’m on their side generally, I just can’t support them verbally because, whether they intend to or not, they are including me in their diatribes. I’m quite sure I’m not alone feeling this way. While you will hear it said that there is ‘always a fringe element’, its not true. This seems to be the majority. I’m reminded of the great Robin Williams movie The World According to Garp. In that movie, there is a group of feminists who are so anti-male, they don’t want Garp (or any male) to attend his mother’s funeral. It doesn’t matter what the content of his heart is, what matters is what’s between his legs. And that is what feminism is supposed to be fighting against.

That is why there is a movement for “why I don’t need feminism”. It’s not that they don’t want equality for women. They don’t want equality for women at the unreasoned expense of all men.


A couple of quick things you can do to at least keep up the pretense of not having a blind-spot where issues of feminism, gamergate and Twitter are concerned:

1) Not use the term “Social Justice Warrior” as an unironic derogative. (You’ve already taken baby steps in this regard.)

2) Not refer to a few people being banned from a platform created by a private company as a “Gender War.”

3) Really just stay away from warfare rhetoric altogether, particularly as a way to disparage and patronize people on the other side of the argument for you. (I’d say this to any offenders on the feminist side of the coin, as well. It’s just oogie.)

4) Maybe run even just one Dissent round-up post on this issue that doesn’t have your qualifying statements and nudgy asides after every quote. This is the only Dish thread in recent memory in which you haven’t published a single post of unqualified dissent. Even your latest “Dissent of the Day” on the matter has a response from you that’s as long or longer than the text from the person you’re quoting. Usually you’re more than happy to air the voices of the people who disagree with you and let them stand for themselves, in their own dissent posts. For some reason, where this issue is concerned, you’re incapable of even pretending to just sit back and listen for a little while.

That last point – “you haven’t published a single post of unqualified dissent” – is empirically untrue. Go here to read a strong female dissent, “the last word on the gamergate furore.” And views from bloggers different than my own are herehere, here and here, to list just a handful of recent posts. A reader links to yet another contrasting view:

Please try to find more feminist critics. Here’s an article from Slate that has the exact opposite take as you on Dr. Taylor’s shirt, using evidence the exact opposite of yours.

Another also thinks our coverage is wanting:

When it comes to racial issues you seem to understand that you simply haven’t had the life experiences to speak in a serious way on the topic without that acknowledgement. As a result, you often quote or defer to the likes of Ta-Nehisi Coates, etc. and take those experiences seriously. You are not a woman, you will never understand what it is like to grow up as a female, work as a female, experience life culturally, interpersonally, electronically as a female. Perhaps it is time you learn to defer a bit on those topics to those that do.

As regular Dish readers know, we are constantly posting content on a wide array of issues related to women, discussed and debated by a range of female voices, including liberal bloggers like Amanda Marcotte, Jessica ValentiAlyssa RosenbergAnn Friedman, Amanda Hess, Rebecca TraisterJill Filipovic, Jessica Grose, Kat Stoeffel, and Tracy Clark-Flory, to name just the most frequent. Follow those links to see their countless contributions to the Dish. Another dissenter conveys a growing feeling in the in-tray:

“Femi-left”?! Seriously, Andrew, you are one shitty, dismissive catchphrase away from me canceling my subscription (and I paid more than the usual, too). I hate to sound like a cranky subscriber at a theatre, and I hate even more the thought of losing your daily deluge of fascinating content, but your complete and utter inability to respond to women’s issues with even a modicum of respect for the opposition is currently cheese-grating my brain. You sound like a parody of Bill O’Reilly performed by a college sketch comedy group. I’ve never sent two e-mails to a website in one day in my life, but … well, here we are.

A reader who appreciates our coverage:

I just read the dissent post regarding your “scorn of feminism” and it made me remember why I love this site. There are so few people taking a logical, well-argued stand against identity politics without actually arguing FOR racism, sexism or homophobia.

I pissed off some family members this weekend by asking why/when the term “oriental” was considered racist. I was not appropriately satisfied with the explanation, “Hello! White privilege.” Asking for more than that is, apparently, a bridge too far, and asking the question itself is considered insulting and somewhat racist. Yeah, maybe not tightly related to issues around feminism, but it seems like the left, at this moment, is very very concerned with policing speech. Look at the response to Colbert’s comedy routine, or the move to rename the “Washington Redskins.”

As I’ve been mulling this over, I think there are two primary things that bother me about this. The first, is that by creating a set of rules (you are not allowed to say x, or y, or question this in any way), liberals are creating an easy way to identify those who are in the group and those who are out. If you don’t use the right words and follow all the rules, then we can ostracize you and treat you like shit. Which, let’s be honest, is a LOT more fun that listening to people and creating a respectful dialog.

The other thing that bothers me, is that policing language is cheap. The left seems to have found a way to be both self-righteous and not actually do anything hard. We make take a stand against the word “Redskins” but no actual change is going to happen in the lives of said Native Americans. They will still be poor, still live in devastated communities, and still die young. But it’s a lot easier to change the name of a football team than it is to go work for $20K/year at a food bank or homeless shelter out on the reservation.

So, yes, thank you for being a voice of reason in all of this. If we are going to have a free society, then it needs to be able to tolerate open debate.

One that note, the far-left blog Feministing wondered about the above episode, “Is South Park turning feminist?”:

Obviously there are issues with the gendering of this episode, such as the assumption that no girl would ever find farting funny (I sure do), that no guy would ever find queefing funny, and of course the avoidance of the fact that girls do indeed fart ourselves. Not to mention the reduction of the entire feminist movement into queefing rights.

But that’s what South Park does best: Takes an social movement or trend and highlights extreme stereotypes to bring to light the most ridiculous elements of that movement. So I didn’t really find my sexism-alert piqued by this episode and actually found it pretty funny. I felt like it was more the hypocrisy of certain taboo subjects that was more under attack here than anything else. It was certainly brave of the creators to even mention queefing at all, probably the most taboo of all taboo bodily functions.

One more reader ends us on a deadly serious note:

Thanks for posting on the Indian sterilization mess.  One aspect you left out of your analysis is how there’s a women’s rights angle to this as well.  Male sterilization is far less invasive and far safer than female, and yet disproportionately India’s program targets women.  There are a lot of reasons for that, but it can’t be denied that the patriarchal nature of India’s society definitely plays a big role.  The whole situation is beyond horrifying, not just because of the senseless deaths at the hands of misguided government programs, but because it reveals how little India values one half of its population.

Please please please give this story as much air time as you did the crazy thought-policing of Twitter by “feminist activists” and Gamergate. I hate to see feminism reduced to a bunch of Americans whining about people saying not-so-nice things about them on the Internet when elsewhere women are literally dying of neglect.  If women’s rights in this country have descended to the level of suppressing free speech, then clearly it is time to move our attentions elsewhere.