It’s been fascinating to follow the various interventions, pro and con, surrounding the new “affirmative consent” standard for sexual assault on California’s college campuses and the collegiate approach to adjudicating rape allegations generally. The debate has divided the left against itself; it’s divided moderate liberals from what you might call the millennial left; it’s pitted conservatives against libertarians, and against each other. In this post I’m going to talk about the most interesting liberal argument in favor of the new standard (with another post to come on the most interesting conservative argument in its favor), which has been offered up by Vox’s Ezra Klein. It’s interesting because he concedes, upfront, that the California policy’s critics have a reasonable point:
[Affirmative consent/"yes means yes"] tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test …
… Defenders of the bill argue that the lovers have nothing to worry about; the assault will never be punished, because no complaint will ever be brought. Technically, that’s true. But this is as much indictment as defense: if the best that can be said about the law is that its definition of consent will rarely be enforced, then the definition should be rethought. It is dangerous for the government to set rules it doesn’t expect will be followed.
But these problems, he argues, are ultimately outweighed by the need to instruct men, deter them, and above all scare them:
The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value … [it's] 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 D–n Sure.
What’s striking about this argument is how closely it tracks with a perspective on law and culture that’s much more common on the political right. (A point that has not been missed by some of Klein’s more eloquent critics on the left.) The argument that a law can have cultural and pedadogical value even if “rarely enforced” is essentially a version of the law-as-moral-teacher claims often made (with little success of late) by social conservatives on behalf of and in defense of morals legislation. The case that imperfections, unfairnesses, and sometimes frank injustices must be accepted in order to achieve the greater good of deterring the wicked and protecting their potential victims is basically the standard sort of law-and-order argument offered in response to news of false convictions, patterns of unfair sentencing, and other points raised against our criminal justice system. And the language of crisis that pervades Klein’s piece is not unlike the language that tough-on-crime right-of-center voices deployed – for understandable reasons, since there was a crisis — throughout the criminal-justice debates of the 1970s and 1980s.
As a conservative myself, I naturally find Klein’s somewhat-grim argument that affirmative consent will succeed by striking fear in the hearts of college men a little more persuasive than some of the more utopian sex-positive arguments in the new regime’s favor — for instance, that it will succeed by inspiring men to become more attentive lovers. But I also think his crypto-conservative case is vulnerable to a version of the kind of argument that liberals often make on law and order issues — namely, that certain kinds of legal injustice aren’t actually a necessary evil; rather, they’re a cop-out, a tourniquet, a cowardly way for a culture to avoid reckoning with the root causes of its social problems.
In the case of sexual violence on campus, those root causes would be the intersection of the two dominant forces at work in the modern university. First, there’s a corporate incentive structure in which a drunken, dangerous campus social scene is accepted and tacitly encouraged because it interlocks with the university’s financial incentives: It’s bound up in the lucrative business of big-time college sports, the alumni-binding power of fraternity culture, and the competition for the tuition dollars of well-off students seeking the kind of “campus experience” promised by “Old School” and “Van Wilder.” Second, there’s the contemporary academy ideological commitment not only to gender equality, not only to sexual permissiveness, but to the essential interchangeability of the sexes, which rules out any kind of formal in loco parentis restrictions on student behavior up to the point when sexual assault becomes a live possibility.
Because these forces align in various ways, and are so deeply embedded in the very foundations (literally, in the case of co-ed housing) of the contemporary multiversity, colleges have strong incentives to avoid the kind of anti-rape agenda that might actually reduce rapists’ opportunities and/or lower the odds of more-ambiguous encounters taking place. It’s much easier to accept and implement star-chamber disciplinary policies, even if those policies will inevitably produce miscarriages of justice for some small handful of luckless students, than to change the way colleges currently do business and/or think about sexual ethics and social life overall.
But to create a disciplinary system that’s bound to railroad some students because you’re unwilling to rethink a beer-and-circuses campus culture and the post-parietal living arrangements in which it flourishes … well, that doesn’t necessarily seem like a policy course worth applauding, even if it sort-of “works,” and it’s small-c conservatism just reflects a bias toward a deeply rotten status quo.
Unless, of course, you think we’re in kind of crisis moment in the life of academic liberalism, and that conservatives should welcome policies, however problematic, that promise to heighten the whole bureaucratic-intellectual edifice’s internal contradictions. This possibility is the heart of the actual, as opposed to crypto, conservative case for affirmative consent, to which (hopefully) I’ll turn later on this week.