I’ve written previously about California’s new “Yes Means Yes” law, which codifies a strict definition of “affirmative consent” as it applies to students on college campuses. It’s a terrible bill, but some liberals are touting its absolute failure to address any real problems as its greatest achievement.

A group of professors at Harvard Law School recently published a joint letter in the Boston Globe begging the university to rethink its implementation of a similar standard:

We call on the university to withdraw this sexual harassment policy and begin the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community. The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.

28 professors from one of the finest law schools on the planet believe that these laws go to far. They’re not just a change in policy; they redefine the meaning of “sexual assault,” and “consent.” They’re a gross overreach into the lives of students that flies in the face of the basic concepts of justice and due process.

Chief Voxsplainer Ezra Klein recently penned an article explaining why he believes affirmative consent regulatory overreach—and subsequent overregulation of the sex lives of young Californians—will eliminate the alleged culture of “sexual entitlement” on college campuses.

In Ezra Klein’s illiberal utopia, we achieve that goal by making examples out of men whose only crime is that they are male:

The Yes Means Yes law is trying to change a culture of sexual entitlement. That culture of sexual entitlement is built on fear; fear that the word “no” will lead to violence, or that the complaint you bring to the authorities will be be ignored, or that the hearing will become a venue for your humiliation, as the man who assaulted you details all the ways you were asking for it. “No Means No” has created a world where women are afraid. To work, “Yes Means Yes” needs to create a world where men are afraid. For that reason, the law is only worth the paper it’s written on if some of the critics’ fears come true. 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.

This idea that a law must first victimize the innocent in order to achieve social change flies in the face of the original concepts of justice.

Jonathan Chait at New York Magazine points this out; it’s not that we expect campus disciplinary proceedings to exactly mirror judicial proceedings, but there is an inherent expectation that those sitting as judge and jury are there to suss out the facts, not settle the score in the Battle of the Sexes. Chait argues that this is exactly the case—that fans of this new law “[argue] for false convictions as a conscious strategy in order to strike fear into the innocent.”

In a piece from today, Klein attempts to defend himself:

But I think I understand where Chait got that, so let me try and explain this more carefully. In the part of my piece Chait quotes, I say that for a consent culture to be established, college boards will have to “convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations,” and that the stories of those convictions, which will often feel deeply unfair to accused and even sound unjust when described by the accused, will have to become broadly known to parents and college students. But I think Chait and I have very different definitions of ambiguous. He seems, worryingly, to equate “ambiguous” with “innocent.” But imagine a party where the man and the woman go home together, and they’re both pretty drunk. They’re making out, and the man wants to go further. She says, “I’m not sure I want to do that,” but she doesn’t quite say no. He’s persistent, though. Not forceful, but persistent. Five minutes later he tries again. Again, she says something that’s not quite “stop!”, or maybe she says nothing and simply moves his hand away. And five minutes after that, he tries yet again. Eventually, she shuts downs somewhat, lets him do what he wants. What happened here?

What happened here is that a man and a woman had consensual sex.

Consider this hypothetical scenario:

You’re at a bar, flirting with a guy who defines the word “persistent:” the guy isn’t forcing himself on you, but maybe he’s insisting on buying you your next drink. You accept the drink, and engage in conversation. You let him kiss you after the bar closes, not because you feel indebted to him, but because you had fun talking to him and he seems like a nice guy.

Maybe you take him back to your apartment. You’re not really sure whether you want to have sex, but you definitely want to explore this kissing thing a little further. You’re both drunk and this is obviously stupid, but you’re having fun.

So you get home, pop open two more beers, and chill out on the balcony for approximately 10 more minutes before you both decide you’re “super tired” and “just want to sleep.” Suddenly, kissing is back on the table. And some touching. And before you know it you have some decisions to make.

He kissed you, you kissed him. He touched you, you touched him. You know what’s up when you hop into a bed half naked with some guy and let him kiss you—this isn’t 1952, and you know how The Sex works.

The next morning, you wake up to a pounding head and some guy named Ted sporting nothing but the smile of a selfish lover. Morning, sunshine!

Oh God. What just happened?

Honey, you just had drunk sex, and it was drunk sex for both of you—but that’s not the end of the story in Klein’s Utopia.

I hate the phrase “hookup culture,” because it implies there’s some sort of implicit agreement between the sexes that by default, it’s going down; but the fact is that this sort of culture exists, at least in some fashion, and the result can either go one of two ways: you can either have a great time and leave the next morning happy (if not fulfilled,) or you can leave feeling sloppy, and dirty, and more than a little upset with what happened.

Laws like Yes Means Yes assume for all of us that when this kind of sex happens, it happens to women. They assume that women as sexual creatures are not only incapable of making choices, but will by default crumble under the fallout of their bad ones.

At best, it is as Heather Mac Donald called it “neo-Victorian.” At worst, it is a mindset that actually sets back women/feminism/the human condition back into the stone ages. What the philosophy behind “Yes Means Yes” means—and what Klein believes, even if he doesn’t realize it—is that a woman is only empowered by her ability to decide post facto that it is actually men who are responsible for her now-regretted choice to have sex.

In the real world, you would wake up from your encounter with Ted, toss the guy a water bottle, and throw him out with his pants still in his hands. You would sit on the couch and dial your friend and talk about how you’re going to shower for the next five hours because you drunkenly hooked up with some guy named Ted. Then you would move on with your life, because you are a grown woman who can deal with her choices.

In Ezra Klein’s world, you would wake up from your encounter with Ted, toss the guy a water bottle, and throw him out with his pants still in his hands. You would sit on the couch and dial your campus counselor to discuss your options—as opposed to just doing some self-searching about why you chose to become so intimate with a stranger.

Did he force you? No.

Did he threaten you? No.

Were you into it? …Maybe?

Were you drunk? Definitely. I was definitely drunk.

Bingo. Now, instead of going to class on Monday, Ted is going to be having a very special conversation with a panel of bureaucrats about the consensual sex he had on Saturday. Ted is no longer a student. Ted, as it turns out, is a rapist without ever having committed a rape; and you, by default, are a victim who has pressed the statutory rewind button and changed the game after the fact.

The Harvard professors understand exactly what these laws mean, and why Ezra Klein is so hopelessly wrong in his analysis of them. “Yes Means Yes” doesn’t institute a power shift; “Yes Means Yes” changes the rules and picks a winner in a hypothetical sexual assault scenario forced into reality.

This isn’t justice. This isn’t empowerment. This is vindication on behalf of a particular class of women who have taken advantage of their sexual liberty, and realized that it’s not all it’s cracked up to be.

Featured Image via The Fire.

Post title based on a reversal of Blackstone’s famous formulation.



