Codifying Consent, Ctd

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

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


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.