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.

1 comment:

  1. Brett Sokolow, mentioned in this blog, corrects the record. https://www.ncherm.org/pdfs/2005NC3.pdf. Our writings, published and publicly available for many years, show quite clearly that the quote in this article is 180 degrees from what we actually believe about incapacitation.

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