It's On Us and Yes Means Yes: Bad Ideas or Overdue Requirements?

The Obama Administration recently launched a public relations campaign to combat sexual assault. The campaign was titled "It's on us". You can check out the video here. I do indeed feel a special obligation to look out for some women. This group would include all related women, particularly younger ones, some really good women friends or close co-workers, and any woman with whom there is, was, or might be an intimate connection. For those women I will risk confrontation and physical danger. I was raised to believe that it's my job to protect such women or offer advice, even if occasionally they eschew such assistance. So that is indeed on me. I wouldn't like it were I ever in a situation where I could have helped a woman and chose otherwise from fear or sloth. But strange women, women who I don't know from Eve, are not my primary concern. This is 2014. Many women proclaim that they are independent and can look after their own affairs. I don't think that they need or want a stranger monitoring their alcohol consumption and clothing choices, or deciding on his own that their planned sexual rendezvous with that dangerous looking biker is too risky and must be halted. It's one thing to see a woman being physically assaulted and callously refuse to assist her. I'm almost 100% certain that I would run to her assistance. There's no ambiguity about what's happening when someone is screaming for help or getting throttled or beaten. But the PSA is discussing preemptive bystander intervention. That's a horse of an entirely different color. That means someone would be overriding the woman's judgment with his own. That might not be such a good thing. It also means women can't be trusted to make their own decisions. I disagree with that.

Police officers make errors. They don't get it wrong all or even most of the time but they do make plenty of mistakes. They arrest people for non-existent crimes, wrongly accuse women of being prostitutes, harass people walking down the street, shoot people's dogs from pure spite, make drug raids on the wrong address, shoot people armed only with wallets, and make other errors that result in people being insulted, arrested, tased, imprisoned, beaten, shot or even killed. And these are the experts! If they make mistakes why wouldn't untrained men make even more mistakes. Police are paid to serve and protect. They often enjoy legal protection for that. But if I preemptively intervene in a couple's private affairs because I think something looks wrong, I could be making a horrible mistake for no gain. Such action contradicts my worldview that, generally speaking, grown people handle their own business. So is it really on me to watch out for people who I don't know? No it's not. Sorry. My Superman suit is at the cleaners. If you, like the woman in the debunked Hofstra "rape" case, happen to think it's a good idea to have simultaneous sex with three or four men in a bathroom , I won't stop you. You're grown. I avoid interfering with grown people's romantic and/or sexual decision making. There's a crude word for this that rhymes with dock locking. And it is an excellent way to get your lights punched out. I can't read minds. I can't distinguish between the couple fondling each other because they're drunk and will shortly have sex that one of them may later describe as rape and the couple fondling each other because they've reunited after a three month business trip and are happily anticipating numerous Kama Sutra approved activities. I don't find anything malicious about the PSA. It amuses me that it calls for patriarchal protection when "patriarchal" is considered a dirty word. I think this PSA is well meaning, if misguided in today's world.

I'm not sure I could say that the "yes means yes" law is well meaning. California recently made a change in the law by passing the so-called "yes means yes" bill. This only applies to college students who are studying at institutions that receive state funding. All non-savages want to reduce the incidence of rape but I just don't see how this law helps with that goal. All I can see coming from this law is unintentional comedy and further degradation of the innocent until proven guilty standard. The very best that could happen is that nothing changes. All we have is a reframed version of the current conundrum in such cases. There are no witnesses other than the accused and the accuser. The accuser says she was raped. The accused claims the accuser agreed to consensual sex. At trial everyone else has to weigh the evidence, such as there is, and decide if the accused was proven guilty beyond a reasonable doubt. Reasonable doubt means that the prosecution has the larger burden of proof. In other words a woman's word alone is not enough to convict a man of rape in a criminal court of law. Nor should it be. There has to be something else. Feminists have never really liked the presumption of innocence as applied to rape accusations and have been chipping away at it for quite some time in the criminal justice system and in the court of public opinion. "Yes means yes" is a way to do that in the college justice system. The Obama Administration has already informed colleges that under Title IX legislation, colleges are to use a weaker "preponderance of evidence" standard when adjudicating rape accusations, something that received serious pushback and criticism from Harvard professors across the political spectrum.

The main problem with "yes means yes" legislation is that such legislation does not at all comport with the reality of how people really initiate or have sex. Although it might be amusing to imagine that everyone sounds like this when engaged intimately, the reality is that they don't. The "yes means yes" law virtually makes this reaction a requirement for every discrete sexual action. So if a man and woman are fooling around on their living room couch the man might ask the woman if she wants to go upstairs. Now both adults know damn well that this question is shorthand for "Would you like to get naked and combine body parts in interesting ways for the better part of two hours?". However under this law if the man did not get explicit permission for each separate action of inserting tab a into slot b, a woman disappointed with his performance, disappointed with her performance or annoyed for any number of other reasons, could come back at a later date and correctly claim that she was raped. A defender of the law might claim that well, better safe than sorry. That's always true when it comes to sex in a lot of different ways. But it's also true that the steps which a man would have to take to avoid liability under this law also happen to be steps which would destroy many women's erotic interest in that man.

More than once I saw disappointment in the eyes of women when I didn’t fulfill the leadership role they wanted me to perform in the bedroom. I realized that women don’t just desire men, they desire men’s desire―and often they don’t want to have to ask for it. I also realized that I was in many ways ashamed of my own sexual desire as a man, and that this was not healthy. 

At this point I was experiencing some cognitive dissonance with my upbringing, but in time learned to take an assertive lead unless I got a “no” or otherwise thought I was about to cross a boundary as indicated by body language.One night I ended up back in a girl’s room after a first date (those do happen in college). She had invited me in and was clearly attracted to me. We were kissing on her bed, outer layers of clothing removed, but when my hands wandered downward she said, “No, wait.” I waited. She began kissing me again, passionately, so again I moved to remove her underwear. “Stop,” she said, “this is too fast.” I stopped.“That’s fine,” I said. I kissed her again and left soon after, looking forward to seeing her again. 

But my text messages received only cold, vaguely angry replies, and then silence. I was rather confused. Only many weeks later did I find out the truth from one of her close friends: “She really wanted you, but you didn’t make it happen. She was pretty upset that you didn’t really want her.”“Why didn’t she just say so then, why did she say we were moving too fast?”“Of course she said that, you dumbass. She didn’t want you to think she was a slut.”

The man was correct to stop. The risks of not doing so were too great. No means no. But a law that presumes that men and women behave exactly the same in or out of the bedroom and that most women still don't expect men to be the ones to "make it happen" is a law that will be abused. The bedroom is not necessarily a place where there is constant talking, negotiating and begging going on. It's not always "Mother may I" unless you happen to be Norman Bates. Some people like other people to take charge. Some people like to take charge. This doesn't indicate lack of consent any more than a man taking the lead in a dance indicates lack of consent. Rape is a horrible crime. It is second only to murder in how despicable it is. Rape means lack of consent. That means someone does something to you without asking OR you are unable to consent OR you tell them no and they proceed anyway. Rape should not mean that you and someone are having sex, one of you tells the other one to move to the left and a week later one of you is in front of a college kangaroo court because after all there was no explicit permission granted for that "move to the left" order.

Now you would think that civil libertarians would be the ones leading the charge against this law. Well some are. But as I've always said we are all hypocrites in some way or the other. There are some people on the right who are big defenders of the Bill of Rights, except when it comes to black people being harassed or searched without warrant by the police. At that point they will talk about black criminals, say that there's an emergency and claim that the police are justified in unconstitutional activities against the black population. They will demagogue on the issue by claiming that if you're against stop-n-frisk you must be for "black crime".

Well not to be outdone in contempt for the underlying values of our legal system, Ezra Klein, while openly admitting that "yes means yes" is a bad law and that innocents will be harmed, still says that he supports it because the rape crisis on college campuses justifies extreme actions.

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.

Colleges have settled into an equilibrium where too little counts as sexual assault, where the ambiguity of consent gives rapists loopholes in which to hide, and forces women to spend their lives afraid. The Yes Means Yes laws creates an equilibrium where too much counts as sexual assault. Bad as it is, that's a necessary change.

Da Kommissar! That should be the law's primary purpose. These evil men need to feel fear when they start having sex. They should know that the state is watching them. There are no innocents in Klein's world when it comes to rape. There are only guilty people who haven't been caught yet. And if well a few eggs get broken while making an omelet, well we can't build our Brave New World without a few sacrifices along the way. Anyone who disagrees is obviously pro-rape and need not be taken seriously. Klein shows shocking disregard for one of the basic foundations of the Anglo-American legal system, the Blackstone Ratio. Obviously Klein would reverse that ratio. In his ideal world it's better that ten innocents suffer than one rapist go free. And if this "yes means yes" law makes those college men live in fear, so much the better. Again, for those of us who are not in college, do not live in California or have sons going to college in California, this may not seem like too much of a big deal. But make no mistake, this law will eventually spread beyond California and beyond the college judicial system. And that would indeed be a big deal because even more men would be convicted of crimes which they did not commit. This "yes means yes" law is simply alien to our stated values of law. It's also important to point out that over the past twenty years there has been a large decrease in the numbers and rate of sexual assault against women and girls. The idea that there is some sort of epidemic of rape is just not accurate. The way to reduce rape is to harshly punish convicted rapists and teach men and women that drunkenness is not a necessary precursor for sex. You don't reduce rape by claiming that almost every man is a rapist and making men prove their innocence. 

I thought we wanted the state out of people's bedrooms? Unless you want men bringing a public notary and video camera into the bedroom or avoiding college women altogether, this "yes means yes" law may have some unpleasant unintended consequences. Everyone is against rape. But there must be a better way to combat it than this.

What do you think?