Vox editor and former Washington Post blogger Ezra Klein says California’s “yes means yes” law is “terrible,” but “necessary.”
Klein expends quite a few words Voxsplaining why the law is so terrible, including highlighting the fact that most consensual sex between two devoted partners would fail the law’s definition of consent.
“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,” Klein wrote.
Klein also contends that the law may rarely be used, since sex would only be considered assault if the accuser decides it is.
“[I]f 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,” Klein wrote. “It is dangerous for the government to set rules it doesn’t expect will be followed.”
I wouldn’t say it’s “dangerous” to set rules that won’t be followed, more like “dumb” and “wasteful.” But, okay.
Klein even notes the “haze of fear and confusion over what counts as consent” that the law will create. But he thinks that’s a good thing. He also thinks that risking innocent young men’s futures is “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 [she consented],” Klein wrote.
But despite all that (well-deserved) criticism, Klein likes the law. Why? Because Klein, a supposed explanatory journalist, accepts hook, line and sinker that one in five women will be sexually assaulted while in college.
Forget that this statistic was derived from a survey of just two colleges (Klein does note this) and the survey’s own researchers acknowledged that it had a low response rate, Klein assumes this is a solid representation of what life is like on college campuses for women. Glenn Kessler, fact-checker at the Washington Post, even debunked this survey.
But it appears Rahm Emanuel’s idiom that “you never want a serious crisis to go to waste” has been adapted to “never let a good myth go to waste,” as Klein bases his support for the California law around one.
Klein dreams of a world where men are afraid they’ll be branded rapists for having any contact with a woman (as I’ve written before, this is already happening).
“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 [sic] 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,” Klein wrote. “‘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.”
A quick correction for that paragraph: It is not necessarily “the man who assaulted you,” but rather “the man who allegedly assaulted you.” And it’s not him detailing “all the ways you were asking for it,” but rather “presenting his case that you consented,” something this law doesn’t allow for.
Klein notes the “nightmare scenario” where a false accusation is leveled upon a man for whatever reason, but notes how rare such situations are, even though there is a growing number of young men suing their universities for what they claim are exactly such incidents. And this law will certainly do nothing to reduce those numbers.
“This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat,” Klein wrote.
But those “rules” are due process rights being denied for students on a college campus. Rape and sexual assaults are crimes, and college campuses are acting as judge, jury and executioner for these cases — without the expertise needed. So Klein is essentially arguing, along with other supporters of the “yes means yes” law, that it’s okay to disregard an accused person’s defense if they’re being accused of sexual assault on a college campus.
One might argue that these hearings only apply to sexual misconduct policies on college campuses, and while that’s true, the outcomes of these hearings can have more devastating effects on the lives of the accused than in some criminal proceedings.
When the best an accused student can hope for is being branded a rapist for life (even if they’re found not guilty) and the worst an accused student can expect is being branded a rapist for life and expulsion, they need to be handled more carefully.
