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Thoughts On Affirmative Consent and the Campus

[ 181 ] October 15, 2014 |

I don’t have firm views on the new California standards for consent on college campuses. We should see how they work and if they’re effective. But, particularly in light of Jon Chait’s essay, I did want to emphasize a few points about the affirmative consent standard.

  • Affirmative consent does not mean only verbal consent.  Chait doesn’t make this mistake, but it does seem to come up in some critiques of affirmative consent — Freddie de Boer’s, for example. I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable.  But the California standard does not in fact require this.  I don’t know about the proposed Columbia standard, but the New York piece Freddie cites simply asserts that consent must be verbal without backing this up with an explicit evidence from the text.  Consent does not necessarily have to be verbal to be unambiguous.  For this reason, I don’t agree with Ezra Klein that the California law is an “extreme” law perhaps justified by an extreme problem, and I think the alleged ambiguity of consent is vastly overstated.  Jessica Valenti is excellent on this point.
  • An affirmative consent standard does not logically require any particular form of due process.  There are some real potential due process problems when campuses try to enforce sexual assault and misconduct guidelines (although, for reasons I’ll get to in a second, I think they are sometimes overstated.)  I agree, for example, if an appeals process is warranted the appeal cannot be heard by the person who issued the original judgment.  But it’s important to keep these questions distinct.  A traditional consent standard can be enforced with inadequate due process; an affirmative standard can be enforced while granting appropriate due process rights.
  • What process is due is contingent on the nature of the penalty. It’s true, as far as it goes, that the crisis of sexual assault on campus does not justify an illberal abandonment of due process rights.  But it’s also important to remember that what process is due varies considerably depending on the potential consequences. (You have a right to be provided with counsel at a criminal trial, but not at traffic court.)  This is particularly important in this context, because the penalties that universities can mete out are generally pretty limited.  The process that is due to someone facing a 15-year prison term is not the same as the process due to someone facing a one-year suspension is not the same as the process due to someone who is asked to leave a university dormitory.  A regulation that can result in severe sanctions should be narrowly drawn even at this risk of producing significant false negatives, but a student handbook can require more of its students in their sexual practices than the absolute plausible legal minimum.  Students facing severe sanctions should have the opportunity to meaningfully contest charges against them, but nothing in the California law prevents this.

It’s this last point — the relatively small stakes involved here — that I think make the California law worth trying. It may be possible, although I very much doubt it for the reasons previously discussed, that the standard will prove unworkable and produce too many false positives.  It may be — and this is somewhat more likely — that the change in standards will prove ineffectual, not providing any additional protection against sexual assault in practice.  It will ultimately be an empirical question.  But the idea that even in principle “don’t think like a sexual predator” is an excessive burden on students is entirely implausible to me, and I won’t assume that the new standards will fail in either direction ex ante.

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Consent Is Not A Particularly Mysterious Concept

[ 123 ] October 15, 2014 |

Sophia Katz’s essay recounting her sexual assault by Stephen Tully Dierks got a lot of attention because of its implications for the Brooklyn literary scene, but it’s an excellent piece of writing on its own terms, showing the various power dynamics Dierks exploited very effectively.

Remarkably, there are people who seem to think there’s some ambiguity about whether Katz was sexually assaulted, which leads us to an equally superb piece of writing by Mallory Ortberg:

I cannot and will not, as Ellen does, pick apart Katz’ motives for going to New York City or staying with Dierks or not “taking responsibility for herself”; I will assume that as the person best qualified to speak on what happened before and during her stay with Dierks, Katz did not board a plane to New York City because she believed she was going to have to continually fight off sexual advances from her host.

If I had a guest coming in from out of town, and I had romantic or sexual designs on them, and I asked if they would be willing to share my bed and their response was “I’ll bring a sleeping bag; I’d like to sleep on the floor,” I would be appropriately chastened (and privately a bit mortified). The message would be abundantly clear. The No is obvious. The No is there.

I would have to be looking for a way to cheat my guest of their clearly stated wishes, were I to abruptly start undressing and caressing them the moment I got them alone. I would have to be looking for a way to wear down or tear down their No into a Fine, I Won’t Stop You.

I do not believe that most women — that most victims of sexual assault — freeze or shut down when faced with the prospect of coercive sex because they don’t really care what happens next, or because they’re excited to push through the moment for the sheer joy of accusing the aggressor of rape after the fact. I believe that these women, these people, have a finely tuned sense for their safety, that when a woman reports having “a feeling that it would turn into an ordeal if I rejected him,” she is not crazy and she knows what she is talking about.

[...]

I should not have had to do it either time. The first time I said No, the first time I turned my head away, the first time I crossed my arms over my chest and walked away, the first time I said “What are you doing?”, the first time I displayed a clear and obvious distaste for what was being done to me rather than with me should have been enough. That expectation — that the person saying No should be prepared at any moment to fight someone else off is an undue burden. Pretending that active consent is ambiguous and confusing and difficult to obtain is a pernicious lie that has no basis in reality. It is abundantly clear when someone is eager and ready to sleep with you.

I said No. Sophia Katz said No. Saying No was easy, making the man who wanted to hear Yes listen to me when I said No was the challenge. A man who wants to hear a Yes will find a way to drag it out of you.

Saying No was easy. Getting Shaun and Adam to listen to my No took everything I had.

It should not take everything you have to turn down someone’s offer for sex.

A woman who says “No thanks, I’ll sleep on the floor”; a woman who freezes up and tenses at your touch; a woman who says “I really don’t want to” and “We really shouldn’t” and “We can’t” and “Please at least wear a condom” is not saying yes to you, and if you would like to pretend that that is unclear, you are a liar, you are being disingenuous, you are lying and you know it.

Some of the discourse surrounding affirmative consent standards seem to assume that determining consent is some deep mystery wrapped in several enigmas. The basis for believing this has always been unclear to me. It is generally not difficult to tell when someone is consenting to have sex with you. If you’re unsure, you can ask him or her! If you have any doubt, stop! It’s not terribly complicated. There may be some issues with how to write this into a legal standard at the margin, which I’ll deal with in a subsequent post, but I don’t see any problem in principle with an affirmative consent standard.

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McDonald’s

[ 128 ] October 15, 2014 |

Isn’t the real reason for McDonald’s slumping sales and potential slow decline that it makes a horrible burger and that a generation perhaps somewhat more sophisticated on food than the previous realized this? Whether a nouveau fast food joint like Five Guys or Shake Shack or In-n-Out–or just good old Wendy’s–there isn’t much reason to eat McDonald’s today outside of being stuck feeding at the chain’s monopoly on the Mass Pike.

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Wage Theft and the Supreme Court

[ 37 ] October 15, 2014 |

This amicus brief is not one of the Obama administration’s better moments.

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A General Strike in Philadelphia?

[ 10 ] October 15, 2014 |

One story I was unable to talk about after my computer theft earlier this month was the Philadelphia School Reform Commission cancelling the contract with the city’s teachers unilaterally. It was a classic move by the anti-union appointees of Pennsylvania governor Tom Corbett and part of the reason he is on the way out.

What’s interesting is that the city’s labor leaders evidently talked about a rather extreme action in response:

Outraged by the School Reform Commission’s decision to cancel its collective bargaining agreement with Philadelphia public school teachers, city labor leaders contemplated calling for a general strike.

In two meetings, last Thursday and Sunday, labor leaders debated the wisdom of asking members of all area unions – laborers, electricians, communications workers, janitors, nurses, bus drivers, city employees – to walk off their jobs to protest the SRC’s decision.

“If there is going to be a fight, we have to fight about the future, and the kids are the future,” said Henry Nicholas, president of the National Union of Hospital and Health Care Employees, headquartered in Philadelphia.

They chose not to do so, for complex and I think understandable reasons:

Jerry Jordan, president of the Philadelphia Federation of Teachers, told the group that he wanted to exhaust legal remedies first.

And the leaders decided to await the outcome of the Nov. 4 gubernatorial election. Democratic candidate Tom Wolf has said he supports returning Philadelphia’s schools to local control. The SRC is a state board.

“After a thorough vetting, we decided to go out and get Tom Wolf elected” governor, Dougherty said.

Despite the desire of a lot of lefties to see labor take radical actions and forget the political game, I think this decision makes a lot of sense.

First, labor leaders don’t really have the power to dictate worker action for something like this. In other words, were the rank and file of these other unions willing to go on strike for teachers? If so, how long? What would a 1-day general strike have accomplished? Probably nothing. We can even ask whether labor leaders can really lead this kind of action or whether it has to come from the rank and file itself? While I tend to downplay the romanticized idea of rank and file action that so many on the left love to talk about, this is one circumstance where I think everyday workers have to lead unless the union structure itself is a real democratic voice for the workers, which it usually isn’t. So I’m not sure what the labor leaders themselves really could have done here unless their workers were also motivated, which they almost certainly weren’t.

Second, while I doubt Tom Wolf is a panacea, he’s almost certainly better than Corbett on every issue and may actually reverse this action. So here the political arena makes sense. This is publc-sector labor after all, making the electoral game vital. On the other hand, mayor Michael Nutter supports the action and will Wolf really reverse it?

I’m not a labor lawyer so I can speak less fluently about the legal remedies might fix the problem. I can say that relying on the courts to enforce labor law is a problematic situation in 2014. But still, I think it is worth asking what a general strike would have accomplished here. The answer is almost certainly not much–but who knows. Just doing so might have sparked a broader-based protest, i.e., an Occupy-type movement, that would have made it worth doing. I absolutely makes sense for labor leaders to not call for such a thing. But it’s hard to not wonder what would have happened had they gone with their first instinct.

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What Stand Your Ground Really Means

[ 39 ] October 15, 2014 |

Stand Your Ground laws are horrible by themselves. But the idea that these laws are meant to allow citizens to defend themselves is laughable. The laws’ real meaning is to allow white men to reassert their authority over non-white men in whatever way they choose. South Carolina has effectively affirmed this:

South Carolina is one of more than 20 states that has passed an expansive Stand Your Ground law authorizing individuals to use deadly force in self-defense. The law has been used to protect a man who killed an innocent bystander while pointing his gun at several teens he called “women thugs.” But prosecutors in Charleston are drawing the line at domestic violence.

In the cases of women who claim they feared for their lives when confronted with violent intimate abusers, prosecutors say the Stand Your Ground law shouldn’t apply.

“(The Legislature’s) intent … was to provide law-abiding citizens greater protections from external threats in the form of intruders and attackers,” prosecutor Culver Kidd told the Post and Courier. “We believe that applying the statute so that its reach into our homes and personal relationships is inconsistent with (its) wording and intent.”

In other words, a woman using armed force to defend herself against a home invading man she had a relationship with doesn’t apply because, again, these laws are about white dudes. And South Carolina refuses to take domestic violence seriously even thought it is an epidemic:

The Post and Courier, which originally reported prosecutors’ position, has been doing a series on domestic violence over the past few months, in which it found that women are dying at a rate of one every 12 days from domestic abuse in South Carolina, a state “awash in guns, saddled with ineffective laws and lacking enough shelters for the battered … a state where the deck is stacked against women trapped in the cycle of abuse.” More than 70 percent of those who kill their spouse had “multiple prior arrests on those charges” and the majority spent just days in jail.

It is in that context that the Post and Courier gave front page treatment to another strike against domestic victims in Stand Your Ground laws, even as those who engage in what many consider vigilante killings are protected by the law. The man granted immunity for killing an innocent bystander, Shannon Anthony Scott, reportedly had a sign posted in his window that read, “Fight Crime – Shoot First.”

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Abortion Green Lanternism

[ 9 ] October 15, 2014 |

Atrios is making sense:

What was especially maddening about Saletan-esque arguments over the years, aside from their clear wrongness, was that he seemed to truly believe that if only pro-choice people would admit it was all so icky and horrible then anti-abortion people would just surrender and go home. It was the position that only a High Priest Of Punditry could take, that the discourse was more important than the policy.

There were a lot of pathologies in the general pundit discourse about abortion in the preceding decade (which, thankfully, seem to be a little less common now.)  But one of the strangest is the idea that there was some rhetorical strategy that could end the underlying conflict. And it’s particularly odd in the context of abortion, where public opinion has been remarkably stable since the issue became politically salient in the mid-60s, all the clever rhetorical strategies of both sides aside.   Framing and messaging are overrated in general, and abortion is a particularly strong case in point even though it’s an issue where people seem to be particularly obsessed with it.

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Orange County

[ 46 ] October 15, 2014 |

Upon arriving at John Wayne Airport in Orange County, this is what greets you. It is the most Orange County thing ever.

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Yet this cannot even compare to what I will post tomorrow, the most epic photo ever posted on LGM and Orange County’s truest tourist attraction. None of you will guess what it is but you will all agree once I post it.

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Frivolous Legal Threat of the Day

[ 49 ] October 15, 2014 |

Blake Lively.

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Foreign Entanglements: The Bridge

[ 1 ] October 14, 2014 |

On this episode of Foreign Entanglements, I spoke with Tom Nichols about bridging the academic-policymaker divide:

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Tuesday Links

[ 33 ] October 14, 2014 |

Anti-density restrictions are an incumbent protection racket that work well for the affluent and not so much for anyone else.

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Abortion Rights Without Apology

[ 167 ] October 14, 2014 |

Katha Pollitt has a fantastic looking new book about abortion rights coming out. This, in turn, has led to some excellent writing from Laurie Abraham, Hanna Rosin, Lindsay Beyerstein, and Jill Filipovic. I liked Rosin’s open in particular:

I had an abortion. I was not in a libertine college-girl phase, although frankly it’s none of your business. I was already a mother of two, which puts me in the majority of American women who have abortions. Six out of 10 are mothers, which makes sense, because a mother could not fool herself into believing that having another baby was no big deal.

I start the story this way because Katha Pollitt, author of Pro: Reclaiming Abortion Rights, would want it this way. In fact any woman who’s reading this piece and has had an abortion, or any man who has supported one, should go in the comments section and do the same thing, until there are so many accounts that the statement loses its shock value. Because frankly, in 2014, it should be no big deal that in a movie a young woman has an abortion and it’s no big deal. We shouldn’t need a book explaining why abortion rights are important. We should be over that by now.

Much more of this, please. Nuts to the “we should perhaps reluctantly make abortion legal but let’s all admit that it’s icky and immoral” arguments from the Saletans and McArdles. Women should not be required to carry unwanted pregnancies to term, women should not have to navigate an arbitrary obstacle course before having an abortion, these rights should not require any apology or tut-tutting about individual choices, and legal abortion is a positive social good. The end.

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