Sunday, August 30, 2015

Violent retaliation against speech is abhorrent, and that’s really all we need to say when it happens

On January 11th, two maniacs killed 11 people and injured 11 more at the Paris headquarters of the satirical publication Charlie Hebdo. The men were avenging what they saw as blasphemy in the magazine’s cartoonish depictions of the Prophet Mohammad, which from their skewed Islamist perspective warranted the employee’s execution. This inspired a massive outpouring of public support for the martyred satirists, in Paris and across the world, under the famous Je Suis Charlie tagline. Unfortunately, it also inspired a litany of copycat attacks in a Paris grocery and a Denmark synagogue, claiming 7 more lives.

To most people, the only possible response to these murders is horrified, unqualified, full throated condemnation. Unfortunately, that was not the response of very many commentators on the political left.

As Anthony Fisher of Reason.com noted in this searing compilation, too much of the post-attack commentary was marked by an exasperating pattern of conflicted eggshell-walking, a response I like to call “I don’t condone violence, but…”. In each case, “cursory denunciations of the murders [were] followed by caveats” that strongly insinuated the Charlie Hebdo staffers at least partly shared in the blame for their own demise:

  • Richard Seymour of Jacobin took the opportunity to (inaccurately) remind us that “irrespective of whatever else it does, and whatever valid comment it makes — the way in which that publication represents Islam is racist.”
  • Jacob Canfield at The Hooded Utilitarian agreed, devoting most of his column to “sneering at Charlie Hebdo's white editorial staff for having the temerity to satirize Muslims and their prophet.” He wrote that the slain editor Stephane Charbonnier was a “racist asshole” for saying that “Muhammad isn’t sacred to me” after his offices had been firebombed. He wrote (and again, wrongly) that the “cartoons often represent a certain, virulently racist brand of French xenophobia,” and lamented that since cartoonists are often white men, “[c]alling fellow cartoonists TO ARMS is calling other white men to arms against already marginalized people.”
  • Sex Critical Feminist Kitty Stryker opined that while “I’m generally pretty anti-censorship…I do not believe that racist, homophobic language is satire. I think it’s abusive, and I think it punches down, harshly and often.” Consequentially, she reached this squirm-inducing conclusion: “I don’t think that shooting up the Charlie Hebdo office was ethically Right with a capital R, ok? But I do think it’s understandable.” (No word yet on whether Stryker thinks it was potentially right with a lower-case r).
  • Bill Donahue of the Catholic League just skipped all the wish-wash about condemning the killings and put the blame directly where he thought it lie: with the editor and his “narcissism."“Stephane Charbonnier, the paper’s publisher, was killed today in the slaughter. It is too bad that he didn’t understand the role he played in his tragic death. In 2012, when asked why he insults Muslims, he said, “Muhammad isn’t sacred to me.” Had he not been so narcissistic, he may still be alive. Muhammad isn’t sacred to me, either, but it would never occur to me to deliberately insult Muslims by trashing him."
  • And finally, USA Today published a (fittingly) provocative Op-Ed from a radical Islamic cleric named Anjem Choudary, who blamed the government for failing to censor Charlie Hebdo. He accompanied this argument with the casual, off-hand observation that “because the honor of the Prophet is something which all Muslims want to defend, many will take the law into their own hands, as we often see.”

In the weeks that followed, I had hoped those on the left would recognize victim blaming at its most egregious, and denounce these initial reactions as wrongheaded. Alas, the progressive conception of victimhood is mighty warped these days. Since Fisher’s compilation, there’s been a lot more where that came from.

Former NPR Ombudsman Edward Schumacher-Matos believed it was wrong for media outlets to republish Hebdo’s cartoons as a means of explaining the context of the attacks, for very bad reasons. (Eugene Volokh, one of the premiere free-speech defenders in the world, had this to say in response.)

Meanwhile, Doonesbury cartoonist Garry Trudeau used the bulk of his acceptance speech for a lifetime achievement award to criticize Charlie Hebdo and those who supported it. He lamented that “free speech absolutists were unchastened” in the wake of violence in Denmark. He accused Charlie Hebdo of “ridiculing the non-privilege…punching downward” and “attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons.” Amazingly, he insinuated that under French law, they should have been prosecuted for “hate speech, which…directly incites violence” (demonstrating a remarkable misunderstanding of that legal doctrine, might I add). Finally, he concluded that “At some point, free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.”

Thankfully, both
Volokh and fellow free-speech champion Greg Lukianoff of FIRE responded to these remarks. So did David Frum, who may have done it best:

“To fix the blame for the killing on the murdered journalists, rather than the gunmen, Trudeau invoked the underdog status of the latter…since the gunmen were “non-privileged,” the responsibility for their actions shifts to the people they targeted, robbing them of agency. It’s almost as if he thinks of underdogs as literal dogs. If a dog bites a person who touches its dinner, we don’t blame the dog. The dog can’t help itself. The person should have known better.”

Before I had a chance to respond myself, there was another attack – this time closer to home. In May, two gunmen opened fire at a “Draw Mohammad” contest in Garland, Texas, wounding an officer, before being killed themselves by security forces. At the risk of sounding like a broken record, the media reaction just minutes after the news broke was rather more conflicted than it should have been.

New York Times journalist Rukmini Callimachi’s response was to tweet the following:

“Free speech aside, why would anyone do something as provocative as hosting a “Muhammad drawing contest”?

Her next tweet read “At a time of such violence, sweet words from Dalai Lama’s spokesman on Tavis Smiley show: Consider the transformative power of compassion.” Sadly, it appears she was not advising compassion for the people who were shot at for drawing a picture.

But the straw that broke my back and prompted this lengthy, rambling post was
this exchange on between Fox’s Megyn Kelly and Huffington Post’s Richard Fowler. After schooling Fowler on constitutional case law, Kelly declared “When two Jihadi’s show up with guns, the relevant question at that time is not ‘what were they saying?’”. To which Fowler responded:

“If they had never had that event, the Jihadi’s never would have showed up!”

Now, I don’t know if Richard Fowler is actually representative of any sizable portion of the American population, or if FOX news dressed him up as a stooge to make an ass of himself on their program. They’ve been known to do that before. But seeing as Fowler is employed by the Huffington Post, and they quoted his arguments somewhat favorably in that hyperlink, I’m going to presume they don’t see anything wrong with that quote. So let’s imagine what the left’s reaction to this sentence would be were it used in a separate context, shall we?

If a bunch of right wing Christian fanatics decided to shoot up a gay pride parade, would “if they had never had that event, the fanatics never would have showed up!” be considered an appropriate response?

If those same fanatics decided to bomb an abortion clinic, would “if they had never offered those abortions, the fanatics never would have showed up!” be seen as an appropriate response?

If someone in the KKK had decided to open fire on a Black Lives Matter march, and Bill O’Reilly went on his program and declared that “had they never sympathized with criminals, they never would have been shot!”, would that have been well received by the folks at the Huffington Post?

Listen, I understand that debates about free speech are not going to go away just because one side pulls the “our side just got shot at!” card. There are many distinctions between what we can say and what we should say. There’s nothing wrong with people who don’t like Charlie Hebdo. I probably wouldn’t buy it myself. Politely declining to join in the celebration of their work (as this guy did) or reminding us that they can’t be immune from criticism just because they’re dead (as this gal did) is okay with me. Condemning the murder does not preclude you from also condemning the publication’s content.

It is okay to believe that both killing and satire-which-punches-down are wrong.

It’s just that the gravity of one of those wrongs so far dwarfs the other that using the occasion of the former as an opportunity to criticize the latter belies a horridly misplaced set of priorities.

In the wake of a mass murder, or even an attempted mass murder, the public’s primary sympathies should be one-directional. Slandering the slain before the ink has dried on their obituaries deliberately deflects that sympathy by rekindling relatively petty tribal animosities towards the victims. It’s akin to a Red Sox fan muttering “Yankees still suck” upon hearing that Lou Gehrig was diagnosed with ALS: that is, bitterly sulking that circumstances have required the media to say anything positive about your rivals in a culture war.

Eugene Volokh had an even better analogy: asking “Other than that, Mrs. Lincoln, how was the theater?” Like the on-stage performance at Ford’s Theater on the night President Lincoln was assassinated there, the tactfulness of the cartoons which prompted the murder of 11 people is so completely inconsequential to the essence of what happened there that bringing it up at this particular moment is more insensitive than anything Charlie Hebdo ever published. It indicates the commentator is so inescapably committed to a singular narrative of who oppresses whom that even momentary departures from that framework strike them as irritating distractions from the only story they know how to write. As Nick Gillespie explained, our opinions about Geller or Charb are “simply besides the much larger and more important point that free speech is free speech and should never be challenged by the thug's veto or bullets or violence.”

Canfield wrote that “To simplify the attack on the Charlie Hebdo offices as “Good, Valiant Westerners vs. Evil, Savage Muslims” is not only racist, it’s dangerously overstated.” It is neither of those things, but in fact a fair and accurate (if unnecessarily specific) description of what happened. There’s something both valiant and good about those who risk their lives in order to deliberately defy violent threats of censorship, whether or not they are Western. And whatever you think of those killed in the attack, the people who waged it were certainly, in that instant, “evil, savage Muslims,” just as the Nazi’s were evil, savage people who happened to be Christian.

Free speech is a complex matter on which reasonable people can disagree, but there is no nuance in these particular incidents. These incidents pertain to an issue on which there is consensus here in the West: killing people for what they say is never okay. That there exist enormous swaths of the world wherein that truth remains contested reminds us where the most important progress is yet to be made.

The central takeaway from what happened to Charlie Hebdo is that we have figured something out which those parts of the world have not. We are not better than them as people, but on the issues of free speech and tolerance, our ideas are better, no matter how that makes them feel. This is not their fault, but it’s true and needs reckoning with. That is the story: that the interests of global justice are better served by catching them up to speed than they are quibbling about the details amongst ourselves. Whatever we resolve in our advanced, privileged and relatively trivial Western discourse about the best direction in which to figuratively punch, what’s most important is that we find a way to convince the rest of the world to stop literally punching, or worse. The killing must stop, full stop.

Also, a relevant Onion cartoon.

Wednesday, July 29, 2015

Problems with California's yes-means-yes law

Note: This is an addendum to my first post on the matter, which endorsed affirmative consent on libertarian/property-rights-minded grounds, and refuted several counterarguments which I do not find as compelling as those below.

Although I support an affirmative consent standard as a general principle for identifying rape, there are some problems with the way California in particular has chosen to implement it.

First, I don’t like it when governments dictate policy details at private educational institutions by attaching strings to the receipt of tuition assistance. This is partly because I believe those tuition assistance programs shouldn’t exist in the first place, and there’s good reason to believe they are a huge contributor to the skyrocketing cost of college education. But such programs are even more pernicious when their primary purpose in effect is not even their stated goal of lowering tuition, but rather to grant politicians leverage over private schools who now need the handout if they are to compete with rival schools. Under such conditions, the whole scheme just becomes bribery with other people’s money. To borrow a phrase from Frank Underwood, “when the teet’s that big, everybody gets in line,” and that’s cronyism at its worst. Policies regarding whom to admit and whom to expel should be made at the level of each individual college. By using “accept or go bankrupt” grants as bait, governments can render these private organizations servile to even the most flippant political whims, which is bad for education as a general trend.

Second, if the state of California truly supports a yes-means-yes standard in identifying rape, logic indicates it should implement that standard in its criminal court system as well. Legislators’ apparent unwillingness to go that far suggests they would be uncomfortable using the yes-means-yes standard if it meant sending someone to jail, as opposed to merely expelling them from school. Of course, the average person has no qualms whatsoever about sending rapists to jail in the abstract. So if lawmakers do not believe all of the students they hope to expel from college deserve jail time as well, it raises questions about how many of them they suspect are actually rapists in the common understanding of the term (the understanding, mind you, for which state sentencing guidelines and mandatory minimums were written). Surely if someone is a true sexual predator, turning them loose on the general, non-college population hardly seems better than keeping them enrolled.

The decision to pursue a less-than-jail-time remedy for campus rapists belies an obvious but unspoken truth about the 1-in-5 statistic bantied about by so many feminist reformers: the rates can only possibly be that high if you include a wide-range of distinct infractions under the same label, some of which are worse than others, and not all of which warrant many years in prison.

To be clear, I stand by my support of the standard: so long as affirmative consent is absent, they are all rape, and they are immoral to a degree libertarians in particular should consider an intolerable violation of the non-aggression principle. Feminists are damn right to demand that all of these sexual infractions be illegal, and also right that even the least immoral of them warrants more forceful public outrage than many Americans presently profess. But in the process of making that case, we would do well to at least acknowledge the nuance. A long-time boyfriend who interprets the absence of resistance as a green light to go from 2nd to 3rd base with his hesitant girlfriend is wrong, and deserves punishment. Should his victim push for it, it is reasonable to argue he deserves expulsion. But in a moral sense, his offence is not equivalent to that of the stereotypical stranger jumping out of the bushes with a knife, using physical force to suppress, dominate and violate a clearly agonized victim. If all the facts were known, no jury in the country would take sympathy on the latter perpetrator, while none would make the former spend decades in jail.

Which sort of rape happens more often on college campuses? Everyone seems to have a hunch, but nobody really knows. Some portion comes from genuine misunderstanding furthered by mutual alcohol consumption, some comes from aggressive serial rapists deliberately ignoring explicit cries of discomfort, some probably fall somewhere in between. But whatever the proportions are, too many feminists deliberately gloss over these distinctions, perhaps because acknowledging them makes their statistics less shocking and their crisis less urgent than they want it to appear.

The good news is that it worked – they have successfully caught people’s attention – so at this stage it makes strategic sense to me as a feminist to exchange a bit of that shock-value for a bit more credibility. Applying a yes-means-yes standard only on college campuses, but not for the general public, creates a double standard wherein rape means different things in different places. This can only exacerbate the already dubious reputation of that 1-in-5 figure, and that’s harmful to progress in changing social mindsets.

It is because I oppose this inconsistent double standard that I want to see an affirmative consent standard in the criminal court system as well.  To some, this may seem an even more extreme position than that of the feminist reforms the past few paragraphs critique. But I don’t think it is, for two reasons. First, this would ideally be complemented by broad criminal sentencing reform, which is long overdue quite apart from your opinion on rape, granting judges more flexibility to sentence convicted rapists in a manner they deem proportional to the particular circumstances. Second, incorporating this principle into the legal code would require a much more specific definition of what constitutes “affirmative” consent to sexual activity in order to satiate the constitutional due process rights of the accused, which I think would be tremendously beneficial to clarifying this very murky subject.

This brings me to my third problem with California’s law: its definition of “affirmative, conscious, and voluntary agreement” is rather vague, which is problematic when schools are operating under fierce political pressures to punish as many of the accused as possible. Whereas PR management formerly gave schools a perverse incentive to sweep rape accusations under the rug, the interest in keeping federal aid and avoiding highly public federal investigation now appears to be creating new (but also perverse!) incentives in the opposite direction, wherein schools consider expelling any male students found to engage in a drunken hookup to be “erring on the safe side.” This is probably a preferable trend on net than what it used to be, but at the extremes it creates horror stories every bit as infuriating as the prior system.

Occidental college’s official policy now reads that even if consent is offered explicitly and affirmatively, it can be silently withdrawn through any “outward demonstration” of hesitation or uncertainty, in which case “sexual activity must cease immediately” or else its rape. Perhaps failing to pick up on body language indicating second thoughts after consent has already been given makes one a bad lover, but a rapist? Withdrawal of consent is one thing that SHOULD require explicit notice if one is to accuse one’s partner of rape. A

Meanwhile, students in Nova Scotia are pushing for a definition that is quite literally “more than yes”-means-yes. Explicit verbal consent to sexual activity is not enough, they argue, if those words are not spoken at a certain minimum volume to guarantee their sincerity! The same people who have for years reprimanded men that “no means no” now advise them that yes also means no!

Even Amanda Hess of Slate, who supports the law, admits “[i]t’s a bit ironic that the lawmakers behind the California bill seem more comfortable specifying what constitutes rape than actually describing what clear, unambiguous, enthusiastic consensual sex looks like.” For example, she asks, can affirmative consent be given while drunk? It is clear from the word “conscious” that it cannot be given when someone is so drunk as to be unconscious, which should have been self-explanatory anyway. But there is an enormous spectrum of drunkenness between unconsciousness and total sobriety, and very many if not most sexual encounters in college feature participants who fall somewhere in between.

I happen to believe that you can consent to sex while drunk, up to a point that is near the point of passing out, which I will explain more thoroughly in an upcoming post. Most colleges today, by contrast, are adjudicating these cases on the advice of Brett Sokolow, who argues that in cases of even minimal alcohol incapacitation, “they could be stark naked and demanding sex and it’s irrelevant.”. Resolving this confusion should be seen as a primary benefit of affirmative consent laws, because the whole point of affirmative consent is that it is relevant whether the accuser gave outward affirmation that they consented to the sexual activity. It is unnecessary, under such a standard, to futilely demand that both participants engage in some approximate mental breathalyzer assessment of the other before proceeding, since it is the reasonable perception of the initiator which matters more than the frame of mind of the accuser. This simplicity should be appreciated by conservatives and libertarians who value personal accountability for decisions made while drunk in other settings, and is consistent with most state laws about DUI, public intoxication, or any other crime.

In any case, a serious standard should find a way of drawing that line more specifically, because if it doesn’t, the ambiguity will make judicial decision-makers more susceptible to institutional biases. The more room for interpretation there is in the law’s definition of affirmative consent, the more colleges will need to “err” on the side of expulsion – not because they’re convinced the accused is actually guilty, but because they want to keep federal dollars and appease social critics who might tarnish their reputation.


Nevertheless, affirmative consent remains a solid guiding principle for identifying rape at colleges and everywhere else. With a few tweaks and additions, other states should follow California’s lead in switching to this standard.

Monday, July 27, 2015

Libertarians should support affirmative consent


The State of California made history last fall by becoming the first state in the nation to adopt any form of a “yes means yes” standard for adjudicating rape on college campuses. The most important part of the bill requires all colleges and universities receiving state funds in California to adopt a policy that includes:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Predictably, many of my favorite libertarian commenters – from columnists on Reason.com to FIRE president Greg Lukianoff – have come out strongly against the bill. State involvement in higher education is controversial in the first place, and to small government advocates, legislating the nuances of our most intimate relations is understandably even more upsetting. Just as libertarians want the state out of your bedroom on birth control, marriage, homosexuality, polygamy and infidelity, we are instinctually repulsed to laws dictating the minutiae of our sexual encounters.

But I take a different view, and I don’t think it’s at all contradictory with my libertarian leanings. In fact, I think ideologically consistent libertarians should wholeheartedly support affirmative consent legislation. The reason is relatively simple, and it involves a body of law and philosophy with which libertarians of all people should be well acquainted: property rights.

Imagine Frank and George are neighbors. One day, George is in hurry to cut the grass, but he discovers his lawn mower won’t start – it needs repairs. Frustrated, he looks over to Frank’s yard and notices Frank’s lawn mower sitting idle. George is on good terms with Frank, and he suspects it wouldn’t be a problem if he were to borrow the tractor for the next hour. Unfortunately, Frank is not home for George to ask his permission, and does not answer his cell phone. But in his haste, George decides to just assume Frank will be fine with it, and uses his neighbor’s tractor to cut his lawn.

Now, suppose Frank came home a few minutes later and caught George using his tractor without permission. Further suppose that for whatever reason, Frank becomes incensed by this, and they get into a riff. In the course of things, their neighborly relationship deteriorates, and Frank decides to file charges against George for stealing his things. They show up in court on the arranged date, and the judge asks George if he used Frank’s lawn mower. He admits he did.

At this point in the proceedings, would you think it an appropriate course of legal inquiry for the judge to turn to Frank, and ask “Well, what reason did you give this man to believe that he COULDN’T use your lawn mower?”

Or, would it be more consistent with your notions of ownership for the judge to ask George a follow-up question: “Well, why did you believe this was okay? What indication did your neighbor give you that you had permission to use his property?”

As Kevin Drum of Mother Jones observes, we already apply affirmative consent to most things. If improperly borrowing a lawn mower seems like too trivial a violation to analogize, imagine instead that it was a car your neighbor borrowed from you, so that he could run an errand at the grocery store. Or, imagine they decided to use your house to throw a party while you were away on vacation. Neither of these rise to the level of bodily violation either, but both would be a rather intrusive request, to use a very private piece of property, which most people don’t just lend out on a whim. Either request might plausibly be consented to had the question been posed preemptively by a close and trusted friend. But neither request can be assumed in the absence of explicit permission.

Sex is the same way. People’s bodies are their first and most important form of property, truly the origin of all other property rights. For a group which claims to value the right to self-ownership so highly, many libertarians seem insufficiently outraged by the extent to which these foremost of all rights are being violated in the campus rape epidemic. If theft is the use or seizure of property without permission, and rape is the use of someone’s body without permission, we should apply the same legal standard to decide what constitutes “permission” both cases. Affirmative consent does that.

When I voice this opinion to my fellow libertarians, I usually encounter three main counterarguments. I’ll refute them here starting with the most common.

1. “Yes means yes renders the accused guilty until proven innocent.”

Reason’s Robby Soave makes versions of this argument here and here, while Shikha Dalmia made it here (quote: “by changing the assumption from "presumed innocent" to "presumed guilty," this new standard will inevitably snag some guys who earnestly meant no harm.) Cathy Young agrees, writing “It effectively shifts the burden of proof to the accused…In practice, this means that any minimally plausible charge is likely to be upheld.” The bulk of the objection arises from the idea that because the accused (often the man) needs to demonstrate he got consent for it to not be rape, he is essentially presumed a rapist until he can prove otherwise.

But this is not the case, because the accuser still has the burden of demonstrating that the accused used her body in the first place (and inversely, the accused has no burden to disprove this). Put another way, the accused is only called to demonstrate that they acquired consent if they already concede the sexual activity took place.

Again, this is analogous to theft. In the lawn mower analogy, the Fred still needs to prove that George did, in fact, use his lawn mower; if George denies that, the burden remains with Fred to demonstrate otherwise. And in like manner, if a woman accuses a man who she has never actually met of raping her (perhaps because she confuses him for the real guy), and he denies having ever penetrated her, the new law will not place any additional legal burden on him to clear his name.

Affirmative consent only comes into play in those cases where the accused concedes sexual advances took place, but claims they were justified because the other person consented to them. That this happens to encompass most college rape cases is precisely why it’s such an important addendum to the law. Unlike the “it wasn’t me!” defense, this second defense is a positive claim which requires substantiation from the defendant, in much the same way a claim of “acting in self-defense” or “not guilty by reason of insanity” requires substantiation in a murder trial. If George tells the judge “Yeah I used the lawn mower, but I thought I had permission to do so,” it is now he who is trying to demonstrate something in court – not Fred.

The accused need not prove he obtained affirmative consent any more than George Zimmerman needed to prove he feared for his life. He just needs to reasonably argue it.

Just as most men accused of rape on college campuses concede some sexual activity took place, George Zimmerman conceded that he killed Trayvon Martin. But penetration does not necessarily make you a rapist, and killing does not necessarily make you a murderer. There are some conditions (defined by law) under which killing is justified. So from that point on in his trial, the question before the court was this: “Is there a reasonable doubt that George Zimmerman killed Trayvon Martin, without it being in self-defense, as the state defines it?” And likewise, in rape cases adjudicated under a yes-means-yes standard, the question before the court is this: “Is there a reasonable doubt (or preponderance of the evidence, as the case may be) that person X penetrated person Y without receiving Y’s affirmative consent, as the state defines it?”

It is still the accuser who has the burden of proving the answer to that question is yes. The accused need only describe to the jury the positive indications of consent they received in order to make their defense plausible. If they cannot do that, they probably received no such indications, in which case they are probably a rapist. If they can, and those indications comport with the legal definition of consent and how it may be conveyed, the court’s line of questioning will likely return to the accuser to see if she (or he) can dispute those claims. And either way, the legal requirements for proving guilt are not inverted: it remains the accuser’s responsibility to surmount the evidentiary standard.

2. “Yes means yes restricts students’ due process rights by mandating the preponderance of the evidence standard.”

Greg Lukianoff of FIRE (who I deeply respect and generally agree with) made this argument to me in person at the Federalist Society’s National Lawyers Convention last fall. He basically argues that the “preponderance of the evidence” standard employed by the California law is too flimsy, and should be replaced by a “clear and convincing evidence” standard for so long as colleges remain in charge of the process (ultimately, both Lukianoff and myself would prefer these cases be adjudicated at the criminal level, and that colleges be left to set their own policies on the matter. See my follow up post on “caveats” for more on why).

But colleges have always used the preponderance of the evidence standard for allegations of wrongdoing, rape or otherwise. When students are accused of cheating or vandalism or underage drinking, colleges across the country must decide whether to expel them from school. There has never been a burden of proof on either party in these proceedings, and the new law does not add one. The “preponderance of the evidence” standard has never been considered a violation of the accused's due process rights in the past, because the maximum penalty a college can enact is expulsion, and nobody has a "right" to attend a college.

I share Lukianoff’s concerns that colleges are being unduly pressured to heighten their expulsion percentages by the federal government for political reasons. I also agree that on a moral level, rape is more equitable to murder and burglary (crimes deemed too severe for college courts, and so handled exclusively by state prosecutors) than it is to cheating on a test. But a more active role for college investigators is still appropriate here, for two reasons.

First, the criminal justice system has proven horribly lax about punishing (or even investigating!) alleged rapists for decades now, due in part to indifference and in part to the inherent difficulty of proving what goes on behind closed doors. If colleges cannot rely on the law to defend their students from rape, they must defend them in some other way.

Second, these cases arise on college campuses, between college students, at a vastly disproportionate rate relative to their occurrence in the non-college population. With all we know about college alcohol and hook-up cultures, this should strike you as intuitively likely even if you doubt the extensive empirical evidence for it. To the extent that there exists a “campus rape epidemic,” colleges have both moral and market justifications for doing everything they can to purge this epidemic from among them.

By analogy, the US military also has an enormous problem with sexual assault. Sexual assault is a crime, which can be prosecuted and sometimes is. Victims of sexual assault within the military are fully justified in filing criminal charges against their attackers should they wish. But in the event they choose not to do this, the military still has a strong interest in expunging potential culprits of sexual assault from its ranks. Consequently, men with a shady record of sexual assault accusations are very often kicked out of the military, even if the evidence arrayed against them does not rise to the level necessary to justify imprisonment. Nobody seems to have a problem with this, because combatting sexual assault in the military is seen as a more important priority than ensuring that nobody is ever unjustly denied employment there. So it is with college enrollment.

If we’re talking about the death penalty, it may indeed be better that 100 guilty people go free than it is for one innocent person to be condemned. But when the penalty is disenrollment from a course of study – merely the cessation of a business transaction – surely it is not better. This is especially true when the evidence suggests most rapes are committed by repeat offenders (such that the risk of letting one off the hook is greater than for crimes with lower recidivism rates).

From a macro perspective, people who truly care about the individual rights of college students should be much more alarmed by the reality of ongoing mass rape than by the risk that some student somewhere might be improperly expelled. You have no right to a collegiate education, but you do have one to bodily autonomy.

Finally, what of people who reject that premise? Many libertarians do not believe in natural rights theory and base their views on more utilitarian grounds. These people have voiced a litany of consequentialist objections to affirmative consent, which (broadly characterized) sound something like this:

3. Principle aside, the law is a pragmatic nightmare. Affirmative consent enacts sweeping and sudden changes to the legal definition of rape that do not comport with how most people have consensual sex, rendering most sexual encounters technically illegal. Consequently, it will either never be enforced (in which case why have it?) or result mainly in the expulsion of innocent people.

This view is generally predicated on a misconception about what affirmative consent requires. Due to the “yes means yes” marketing, many people seem to think it demands the exact word “yes,” without substitute, in response to a direct, formal and explicit request for permission to perform a specific act. Others imagine a sort of clumsy spoken contract, something along the lines of “I hereby consent to let you finger my vagina,” etc. They worry that if this phrase or some rough equivalent is not murmured at each and every stage of the escalation (which it obviously won’t be), it is rape. Slate’s Amanda Hess catalogues the hysteria:

“You may have heard of this bill as the one that would require students to draft up a written sex contract before bed or constantly proclaim “yes, yes, yes!” at every slight readjustment, thereby practically redefining most sex as rape. The Fresno Bee editorial board interpreted the bill to mean that “ ‘yes’ only means ‘yes’ if it is said aloud.” The Daily Californian, the independent student newspaper of UC–Berkeley, also claimed that affirmative consent is necessarily verbal. RH Reality Check advanced the game to approvingly say that affirmative consent requires “a verbal or written yes.” If consensual sex entailed that level of consent, millions of couples would be unsuspectingly raping one another every night of the week.

There’s a lot of hyperbole here, and perhaps it’s born of defensiveness. People likely use their own college sexual encounters to envision how these things go down, and fret that in their experience, there wasn’t always an explicit question asked. Maybe kissing escalated into heavy petting which escalated into intercourse somewhat seamlessly, with few words spoken in the process. Could I be found guilty of rape, they panic? Perish the thought! Any standard that might catch up innocent, well-meaning people – people like them! – must be absurd.

Were these wild claims about what consensual sex must look like true, I would agree that affirmative consent amounts to an unreasonable burden few people would actually follow. But they’re not true, because that’s not what “affirmative” means in this context.

First off, nothing about the word “affirmative” requires that the consent be verbal. People communicate with looks and body language all the time, and this is especially true during sex. Just as certain behaviors could convey a “no” under the old standard without requiring that the word be said, there is such thing as a silent yes. Even affirmative consent opponent David Bernstein concedes that “the affirmative consent standard leaves room for a defense that the complainant provided appropriate non-verbal cues that signified consent” in this post, as means of excoriating the even stricter standard of “explicit consent” endorsed by the Office on Violence Against Women (which I, too, oppose as a legal requirement). By any sane definition, “yes means yes” does not require that the yes be explicit or detailed. It just requires some “affirmation” of consent. Active, enthusiastic participation in the entirety of the sexual activity counts as that, even if no words were spoken and no contract was signed.

Interpreted as it should be, this does comport with how most people have sex. Without getting into too much detail, I’ll put the matter this way: do women who are excited about impending intercourse normally lie on the mattress motionless, in an expectant, spread-eagle posture rather resembling that of a starfish? Or do they generally do something, participate in some way, that lets their partner know they’re into it and provides some active affirmation that they are onboard with the proceedings?

Screw it, I will get into detail! Affirmative consent can be conveyed by being on top – by riding a man in the cowgirl (or reverse cowgirl!) position. Affirmative consent can be conveyed by grabbing the penis and guiding it in from the missionary position. It can be conveyed by text messaging dirty invitations from afar. It can be conveyed by taking off one’s panties. It can be conveyed by purchasing a condom and winking, or asking if he has a condom with a suggestive look on one’s face. None of these behaviors override an explicit no, nor even necessarily prove that the consent was ongoing throughout. They may not settle the matter entirely, or preclude any possible holding of wrongdoing on the part of the accused. But they could all be plausibly cited in court as an indication of affirmative consent that would satisfy the law’s language and pass the rational person test, without requiring any oral communication whatsoever.

Of course, some schools may not share my interpretation of the law, and opponents worry the text is too vague to make clear whether the above actions would constitute consent. But for those worried about government overreach, broad text is a strength, not a flaw. In fact, it is precisely because the parameters of affirmative consent are left unspecified that the breathless fear of expulsions gone haywire is misplaced. On the places where the law is vague, it leaves discretion with the schools: precisely where that discretion lie before the law was passed. Phrased differently, individual colleges will only interpret the law in a way that results in vastly more expulsions if they already otherwise wanted to expel vastly more students (which, again, they were already free to do).

Cathy Young objects that a claim of nonverbal affirmative consent “would leave fact-finders, in real courts or campus pseudo-courts, to try to decide such questions as: Was a head motion a nod that indicated a "yes"? Does pulling someone closer during an embrace amount to consent to sex? Does a passionate response to a kiss amount to a "nonverbal cue"?

Perhaps, but courts are already involved in adjudicating the minutiae of sexual encounters. The law just gives them much-needed guidance on how to do so consistently and fairly, where previously there was none. Misinterpreted body language of the sort Young describes happens every week on college campuses, and college tribunals are already called upon to determine if an assault occurred in those cases. At present, the question most of them have been using for that task is “did any of those signals amount to a no?”. That shouldn’t be the question; it should be, “did any of those signals amount to a yes?” It still won’t always be easy to answer this question, but at least this new one approaches consent from the libertarian mindset of transferrable self-ownership.

With this in mind, the consequentialist argument for Yes Means Yes is really quite sensible. Hess explains:

“This standard improves on the old “no means no” model in a number of ways. A partner who is asleep or passed out can’t say “no.” Neither can a partner who’s frozen in shock or fear when an encounter escalates into an assault. Victims who are threatened with sexual assault aren’t always equipped to respond in rape prevention talking points. Just like with any other violent physical assault, many victims respond by shutting down, going silent, or laying motionless, hoping not to anger their attackers further, or disassociating from the attacks as an attempt at self-preservation. Also, consenting to sex one time doesn’t mean consenting to sex any other time. And consenting to one act (like vaginal intercourse) doesn’t imply consent for all other acts (like anal sex). Having sex with a person who is lying limply on a bed is not consensual, unless that person happens to be really, really into that—but that’s a situation that requires a conversation, not an assumption.

So are affirmative consent laws a good idea? If they are broad enough to include nonverbal cues, I think so. If we can admit that enthusiastic consent is often communicated in body language or knowing looks, then we must also accept that the lack of consent doesn’t always manifest itself in a shouted “no” or “stop,” either. It shouldn’t be the sole responsibility of the uninterested party to speak up during a sexual encounter. If you think it’s easy for a person to just say no, then why would it be so hard for his or her partner to just ask?"

That will hopefully be the only major consequence of a legal shift towards affirmative consent: pressure on men to just ask. Affirmative consent will very likely change nothing about how loving, committed couples have sex. Where it might have a chilling effect is on promiscuous frat bro culture where guys compete to see who can fuck the most women. If that happens, it would be a major step forward for society. I disagree with a lot of what Ezra Klein wrote on the law, for reasons Connnor Freidersdorf explains well here. But I agreed wholeheartedly with this part:


“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…If you're not, then you better fucking ask.”

Thursday, July 16, 2015

The (perceived) dearth of preventative action by women does not discredit the "1-in-5 college women are raped" statistic

From time to time, skeptics of the statistic that 1-in-5 women in college are raped make the following argument against its credibility:

"If rape were really so pervasive, we'd see college women doing more to avoid it."

Some of these skeptics (Christina Hoff Summers comes to mind) are guilty of what feminists call “slut-shaming” or “victim-blaming,” which ought not be taken seriously as arguments against the stat (Google those terms if you’re uninitiated; there are plenty of good feminist sites out there to catch you up to speed). But not all of them are, and accusing anyone who employs this argument of such offenses is intellectually lazy. The argument is wrong, but not necessarily for those reasons.

One of the smarter skeptics is Shikha Dalmia, a libertarian writer for Reason whose work I greatly admire. Careful reading of Dalmia’s argument makes clear she is NOT arguing women who fail to take preventative action share some responsibility for their rape. Rather, she is pointing out only that the absence of widespread preventative action is an indication women are not very worried by the prospect of rape, which she feels they would be were the figures as high as feminists claim. But this is still a bad argument, for two reasons.

First, acquaintance rape can be pervasive in absolute terms without being likely on a per-hookup basis, such that even if the 1-in-5 figure is true, many rational women would not necessarily feel pressured away from certain behaviors until it was too late. Dalmia writes, "if the hook-up culture is pervasive on campuses, it's because [women] don't find the risk they take to be incommensurable with the sexual upside they expect.” But comparing the expected likelihood of sexual gratification to the expected likelihood of being raped by one’s partner for any given sexual encounter selected at random says little about the cumulative portion of women which could wind up as rape victims over longer stretches of sexual activity.

To see why, recognize that the number of sexually active women on your average college campus is likely much greater than 1 in 5. Then, consider that many of these women have several different sexual encounters each year, at different times, with different men. These realities result in an enormous volume of consensual hookups on college campuses. Imagine (as feminists posit) that a small band of men habitually take advantage of these women whenever they get one alone. Imagine they do this often, and (for intuitive reasons) never with the same woman twice. In the context of so many hookups, it’s easy to see how the portion of women who will ever be taken advantage of by a peer during their entire four years at college could approach one-in-five, even while the likelihood that any given hookup will result in rape may still be very low. If that’s an accurate depiction of what’s happening, women would have little reason to fear any individual hookup, even if their long term risks were considerably more frightening.

By analogy, the vast majority of food served at restaurants will not give the consumer food poisoning. As such, the vast majority of people do not greatly diminish their consumption of restaurant food for fear of getting food poisoning. And yet, due to the large sample size, very many people - t
he CDC estimates 1 in 6 – will get food poisoning at some point in a given year. And remember, for college rape statistics, the number presented is 1-in-5 by the end of four years, not just one, so depending on the frequency with which the average student has sex, the per-instance rapes may be even more dispersed.

(In fairness to Dalmia, this also means that over time, statistics using absolute numbers of rapes, or the % of women who have been raped, may conceal other important trends in the sample size of sex being had. If 1 in 5 women were raped in 1950, and 1 in 5 women were raped in 2014, but women in general are finding themselves alone in bed with men by their own volition three times as often now as they did then due to loosening social restraints on female sexuality, the likelihood of being raped during any given sexual encounter has gone down. If so, that's good, and the data feminists choose to advertise doesn't account for that decrease.

But that still doesn't diminish the absolute size of the problem. The more people are doing something, the more problematic the risks of that thing become for society as a whole, and the more legislation may be justified to mitigate those risks. If 1 in 5 football players get concussions, the benefit accrued from concussion prevention education programs increases as the number of people playing football increases, and vice-versa. The more people are having sex, the more it makes sense to have laws which protect us from the dangers of sex.)

But secondly, and more importantly, it seems women DO take all kinds of preventative action, and that the need for them to take such action is almost as potent an oppressive force as is the incidence of rape itself. Amanda Taub and Ezra Klein worded this more eloquently than I could in their respective blog posts:
  • When our society treats consent as "everything other than sustained, active, uninterrupted resistance," that misclassifies a whole range of behavior as sexually inviting. That, in turn, pressures women to avoid such behavior in order to protect themselves from assault. As a result, certain opportunities are left unavailable to women, while still others are subject to expensive safety precautions, such as not traveling for professional networking unless you can afford your own hotel room. It amounts, essentially, to a tax that is levied exclusively on women. And it sucks.” – Taub

  • “Every woman I spoke to talked about this tax in the same way: as utterly constant, completely unrelenting. It's so pervasive that it often goes unmentioned, like gravity. But it colors everything. What you wear. Who you have lunch with. When you can hug a friend. Whether you can invite someone back to your house. How you speak in meetings. Whether you can ask male colleagues out for a drink to talk about work. How long you can chat with someone at a party. Whether you can go on a date without having a friend who knows to be ready for a call in case things go wrong. Whether you can accept seemingly professional invitations from older men in your field. Whether you can say yes when someone wants to pick up the tab for drinks. For men, this is like ultraviolet light: it's everywhere, but we can't see it.” - Klein


Dalmia writes: "The sexual revolution gave women control over their sexual destiny by letting them conduct their sexual lives based on their own individual risk-reward assessment without being stigmatized as prudes or sluts." But how much control do they really have over their sexual destiny if the downside of having a lot of sex is now, instead of being stigmatized as a slut, being raped? As a libertarian, isn't that a far worse and more coercive method of control, which the sexual revolution ought also to logically oppose? Do men face the same risk when they choose to have a lot of sex? If not, isn't that an injustice?


If it is an injustice, is it an unavoidable inequity written into the nature of things? Or is this injustice rooted directly in the alterable behavior of men in the aggregate, which we as social reformers ought do our best to rectify through alteration of that behavior?

Wednesday, July 15, 2015

Favorite this blogger

I've just stumbled upon a fantastic progressive blog by Frederic de Boer, which is well worth a look if not a spot on your favorites bar. This post in particular echoes so much of what I've written about the climate of modern online feminism, except it does it much more succinctly than I was able to do here, herehere, here, here, here, here and here. Some quotes (of his):

  • "I meet and interact with a lot of young lefties who are just stunning rhetorically weak; they feel all of their politics very intensely but can’t articulate them to anyone who doesn’t share the same vocabulary, the same set of cultural and social signifiers that are used to demonstrate you’re one of the “right sort of people.” These kids are often great, they’re smart and passionate, I agree with them on most things, but they have no ability at all to express themselves to those who are not already in their tribe. They say terms like “privilege” or “mansplain” or “tone policing” and expect the conversation to somehow just stop, that if you say the magic words, you have won that round and the world is supposed to roll over to what you want."
  • "the idiom of aggressive condescension and blank derision is not going to convince anybody, no matter how well trained people are to ape it."
  • "The schizophrenia of today’s social justice left is that it recounts all of the ways in which it is currently losing but does it with the belittling attitude of a team that’s running up the score...if you think that the places you hang out online are indicative of the world, then you always are winning in your own mind."
  • "People who consider themselves dedicated to achieving political change have this fact to confront: it has never been easier to live in an intellectual cul-de-sac."
  • "Of all types of political arguments, none is less likely to broaden your coalition than the one that makes your targets feel ridiculed. When people say that those who have been called out online should respond by apologizing and learning, they are betraying a profound ignorance about human psychology. That just is not how people work."
Best of all, I can safely refer my readers to his blog WITHOUT perpetuating the same ideological echo-chamber he laments, because he is pretty far left and seems to disagree with me on lots of things. Which is refreshing, because it didn't prevent him from getting that post exactly right.