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“Rape Culture” Justice: Better 10 Innocent Men Suffer, Than 1 Guilty Man Escape

“Rape Culture” Justice: Better 10 Innocent Men Suffer, Than 1 Guilty Man Escape

“Yes Means Yes” doesn’t empower women — it empowers “rape culture” propagandists

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.


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Ezra Klein would have been very happy in Roman times.

Decimation was a form of military discipline used by senior commanders in the Roman Army to punish units or large groups guilty of capital offences such as mutiny or desertion. The word decimation is derived from Latin meaning “removal of a tenth”. The procedure was a pragmatic, yet vicious, attempt to balance the need to punish serious offences with the practicalities of dealing with a large group of offenders.

A cohort (roughly 480 soldiers) selected for punishment by decimation was divided into groups of ten; each group drew lots (sortition), and the soldier on whom the lot fell was executed by his nine comrades, often by stoning or clubbing. The remaining soldiers were often given rations of barley instead of wheat (the latter being the standard soldier’s diet) for a few days, and required to camp outside the fortified security of the marching camp.

Because the punishment fell by lot, all soldiers in the group were eligible for execution, regardless of the individual degree of fault, or rank and distinction, unless rigged to eliminate the mutiny ringleaders.”

Henry Hawkins | October 16, 2014 at 6:31 pm

Wow. Porn comes to LI!

Henry Hawkins | October 16, 2014 at 7:13 pm

Had this been in effect in my salad days, I’d have gotten the death penalty before Christmas my freshman year.

Presumed guilty is eerily reminiscent of civil rights violations.

One of the many perversions of this law is that it codifies the misuse of the insanity defense that occasionally slips through our very unreliable system of trial by jury.

An insanity defense is supposed to maintain only when the perpetrator of a criminal act is so mentally disabled that they were actually unaware of the harm they were doing. A crazy guy who smashes someone’s head thinking they are smashing a pumpkin might get off on an insanity defense.

Juries can sometimes be swayed to misapply this defense in cases where the accused puts forward some psychological excuse for what they did, without making any case that they didn’t actually know what they were doing.

Consent is a similar criterion. Lack of consent by incapacity means that the person is in a state, like unconsciousness, where they are literally incapable of giving consent. By this traditional standard, if a drunk person consents to something that proves they were not too drunk to consent. They DID consent. The CA law radically alters the meaning of consent, or lack of consent. It no longer means that the person did not consent. It just means that they were drunk when they consented.

Are drunk people going to get away with murder now (so long as they are female)? After all, this law declares that a drunk woman is incapable of comprehending consent, so by the same token, wouldn’t she have to be unaware of the harm she is doing if she smashes a man’s head like pumpkin? To admit she can comprehend this harm is to admit that she can give consent (which she has already proven by giving consent).

So they are attacking the whole concept of mens rea and what it means to be aware of the immediate implications of one’s own actions. If such a fundamentals are thrown over in expedient service to one corrupt cause the damage is bound to propagate throughout our system of law.

Finding lack of consent when consent was in fact given is like finding someone guilty of murder when nobody was killed. The law becomes an incomprehensible mess where anything goes. How long before someone uses drunkeness as a defense against murder, and succeeds because jurors have been trained to see this as the politically-correct female-friendly way to think? A bunch of university educated female jurors? A drunkeness defense would be a slam dunk.

    sequester in reply to AlecRawls. | October 16, 2014 at 8:00 pm

    The corollary of this lunacy is that DUI should no longer be a crime. If a woman is too drunk to operate a vehicle then she was too drunk to have made the consensual and mindful choice to operate the vehicle. An essential element of the crime of DUI, possession of the vehicle while intoxicated can no longer be proved under this deranged calculus.

      very fine observation. I can’t wait to stir the cognitive-dissonance-stew with this the next time I enjoy a debate with one of my many prog friends.

      DavidJackSmith in reply to sequester. | October 17, 2014 at 2:33 pm

      There’s a closer analogy.

      A woman goes to a bar, gets blind drunk, gets into her car in the parking lot, drives off and kills somebody with her vehicle.

      So that’s totally her fault. Right. She’s going to jail. Her. The drunken driver who killed someone.

      However the same woman goes to a bar, gets blind drunk, picks up a guy, gets into her car in the parking lot, and has sex with the guy.

      But suddenly that’s HIS fault.

    Valerie in reply to AlecRawls. | October 16, 2014 at 10:58 pm

    When I was in college, I was told that one of my dear friends (male) had been accused of “trying to rape” (no charges filed) a girl. I burst into laughter, and said “X doesn’t have it in him to rape somebody!”

    This was absolutely true, because it would not be any fun for him to harm another, and he’s since grown into a fine man. But he was there when I said it, and I saw that my words had hurt his feelings.

    People at that age are not thinking straight. They are not sane, and they should not be witnesses nor accused, unless someone is willing to press criminal charges in a real court of law.

A College Senior walks into a bar…

Lady comes over and sits by him, she’s drunk, he’s sober. They both have a few drinks, a few dances, they go home. They have great, sloppy, drunk sex. He’s happy… she’s happy… they go out for breakfast and make a date to go out that night.

Her roommate reports to her Counselor that Party Girl had drunk sex. Party guy has no defense against the charge of rape brought by the School… even if the Party Girl isn’t upset.

If she was drunk, she cannot consent… under any circumstances… He’s kicked out of school his Senior year. And remember, when you don’t graduate, all of your Grants and School Loans need to be repaid… immediately. $60,000 a year School? $250,000 date.

People have been making bad decisions when it comes to sex for thousands of years. This new law, which was written for young women, basically absolves them of any responsibility in their intimate affairs. It’s a very troubling development for women and Feminism IMHO. In the long run I think they’ll regret implementing these misguided policies.

This is a mistake.

I know what is going on. A few venal lawyers of middling talent are trying to get on the college-position gravy train, but this is a can of worms best left unopened.

Sex on campus is full of bad behavior, bad lines, stupid moves, and hurt feelings, along with the seeds of a few long-term marriages. We should let it be.

The venal lawyers of middling talent should be left to chase ambulances.

Why is Klein reminding me of Robespierre and his Reign of Terror? Or is Klein more like Jean-Paul Marat and his calls for more and more executions to make the Revolution successful? I just can’t decide…

DavidJackSmith | October 17, 2014 at 8:44 am

LIBERAL: Yeah, like TO KILL A MOCKINGBIRD is like totally one of my favourite books, because it like exposes the total injustice of railroading a man on a bogus rape charge. It changed my life!

SAME LIBERAL: “Like yeah I am totally for assuming student accused of rape have to prove their innocence, and like they shouldn’t get like presumed innocent, or due process, or white privilege stuff like that. Because basically all men are rapists deep down, y’now.”

American Human | October 17, 2014 at 10:21 am

And then after talking with the counselor, you find out the guy is the QB of the football team whose name is Ted.

Sooner or later some student will finally ask why faculty aren’t subject to the same laws. Don’t they deserve equal protection under the law?

If this law doesn’t go down on challenge in due time, look for unions to try to expand it into their areas of influence, then it will infect our military.

I R A Darth Aggie | October 17, 2014 at 11:21 am

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’s proper response: I have no memory of those events. I remember being at the bar, and chatting up an attractive woman, but after that? nada. I did go the mens room, she must have spiked my beer! Are you telling me that she raped me? and is now attempting to slut shame me? and why does it burn when I pee?

Wut? too much?

Good lord… a bunch of rabid prog drones running around waving banners that proclaim “Castrate!”

And they wonder why we cling bitterly to the 2nd Amendment?

One must remember that the phrase “Better ten innocent men suffer than one guilty man escape” does not exist for the modern Feminist. For them, it is much simpler:

“Better to imprison eleven men, because they’re all guilty.”

“No” means “No”:

Shocking moment woman knocked man out cold with one punch ‘after he asked her for sex’