California’s new Yes Means Yes Law has been officially entered into the books out on the Left coast, much to the delight of progressive activists around the country. Anyone who voices even the slightest concerns over the potential for abuse or unwarranted prosecutions under these rules shall be immediately labeled as a Warrior Against Women, a rape culture apologist and an out of control frat boy. So with that in mind, I suppose we’d best get to it.
Earlier this week I wrote about the case for Jameis Winston possibly just quitting FSU rather than taking his chances in a kangaroo court set up by the university. These nonjudicial “courts” can result in the accused being charged (and “convicted”) of all manner of violations which would not produce convictions in a court of law. They also frequently fail to provide proper opportunity for competent legal counsel, yet produce records which could later be used in an actual court with no proper oversight. (This piece from Judith Shulevitz on these dangerous, fake courts is a great read.)
But what if these sorts of rules leave the realm of the college disciplinary board and make their way into the law books? That’s what we’re about to find out with the Yes Means Yes Law. But before the first case ever makes its way in front of a judge or jury, we can get a glimpse into the future by seeing what experienced advocates and opponents are projecting. Writing at Vox, Ezra Klein is one activist who is at least willing to openly acknowledge that men (mostly) will be wrongfully prosecuted, but still judges that as a fair price to pay for the greater good this law intends to achieve.
California’s “Yes Means Yes” law, is a terrible bill. But it’s a necessary one.
It 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 I’ve come to think that this view — which was, initially, my view — misses the point (this piece, in particular, did a lot to change my mind). The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.
A bit more, just to hammer home where Klein is coming from here. And I really want you to read this short excerpt carefully.
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.
And this is coming from one of the law’s staunchest defenders. I’m going to save myself some work here and share a portion of the response from Charles C. W. Cooke at National review, whose eloquent rebuttal, which examines the difference between classical liberalism and a la carte flights of fancy, is worth a full read.
What is terrible about this law is, in fact, what is wonderful about it. The law’s “overreach,” Klein says, is “precisely its value,” authorities having hit upon “a necessarily extreme solution to an extreme problem.” That “cold winter” of which he writes? That’s a feature not a bug, the measure’s virtue being, in Klein’s words, that it will “create a world where men are afraid” enough of the authorities that they “feel a cold spike of fear when they begin a sexual encounter.” All in all, Klein adduces, “The Yes Means Yes law could also be called the You Better Be Pretty Damn Sure law.”
That’s one option, certainly. Another modest proposal might be, “An Enabling Act for the Salem Rape Culture Trials.”
The phrase Salem Rape Culture Trials should be emblazoned on every discussion of this law which takes place from here on out. As the nanny state continues to leap boldly into areas of human behavior where it is least equipped to operate, one can only imagine the court cases which will arise. (Keeping in mind that each and every one could find someone labeled for life as a sexual predator.)
It’s not hard to imagine a young couple on a date, parked in the guy’s car in front of the dorm before dropping off the young lady he just had pizza with. They begin making out, passions rise, and thinking that he’s gotten the go ahead signal, he attempts to slip a hand under the young lady’s sweater. Not ready to have things go further, she pushes his hand away and tells him that she needs to go to her room… alone.
In the old days, that would be the end of the story. (Unless, of course, the guy is an actual criminal rapist who tries to force himself on her, in which case he belongs in jail anyway.) The disappointed young man would head back home, hoping for better luck with her next time. But now, in the Yes Means Yes Law era, we can easily see the following scenario unfolding when she gets inside to talk to her bestie about her evening.
BFF: How was your date?
Girlfriend: It was nice. That Tommy is certainly revved up to go, though.
BFF: What do you mean?
Girlfriend: We were kissing in the car and he tried to grab my boob. I think he thought we were going to do it right there in the parking lot! (laughs)
BFF: He WHAT!? (Pulls out cell phone)
Girlfriend: What are you doing? Who are you calling?
BFF: DUH! I’m calling 9-1-1. You just escaped an attempted rape!
Girlfriend: Wait… what? No. We were just…
BFF: You hush. Just sit and try to calm yourself. Just explain it to the police like you just did to me. That bastard isn’t getting away with this!
Sound crazy? It does to me, too. But in the brave new world of California law, it’s not going to be a laughing matter soon.