After that otherworldly bit of insanity, the Internet was overrun with outrage, and now, Ezra apparently doesn't like being regarded as what he is -- a laughing stock -- so he's written an angst-ridden explanation that, to put it charitably, is a mess. The heart of this mess is the following (and I explain why what he says here is so wrong below):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.
(Emphasis added.)Jon Chait writes that I am "arguing for false convictions as a conscious strategy in order to strike fear into the innocent." That is, seriously, among the most insane things I've ever seen someone read into my writing.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?It's perfectly possible that the guy thinks nothing happened. She was a bit reluctant, and he persuaded her with his incredibly hot sex moves. Or maybe he thinks she wasn't reluctant, and she was just saying no to show she's not that kind of girl, and he did exactly what she wanted. In either case, he probably believes that she gave him implicit consent when she let him go forward. He's a nice guy. He would never, ever assault a woman.But to her, it might look entirely different. She was exhausted, and drunk, and maybe far from home. She was in a room with a man who outweighed her by 70 pounds and was insistent on going further than she was comfortable with. She tried to warn him off twice and he still kept pushing. Maybe she was feeling too drunk to fight. Maybe she read his tone as threatening. Maybe she thought that if she said "no," the situation would turn violent. Maybe, sometime around his third pass at something she didn't want to do, she stopped thinking he was a nice guy, and began thinking he was a dangerous guy.
Ezra, Ezra, Ezra, just stop! We all know what "ambiguous means," but you don't know what you're talking about.
Klein is advocating that schools punish men for what is technically called "sexual coercion." No rational person questions policies that punish sex procured by physical threats. That’s not what is at issue here. Klein is talking about sex procured after “unreasonable” verbal or emotional pressuring. In Ezra's hypothetical, she consented. Period. She allows him to proceed. In a culture where sex roles of pursuer and “hard to get” have been fairly divided along gender lines for eons, to categorize that kind of consent as sexual assault would convict virtually every sexually active male in America. Perhaps that's Ezra's goal? “Sexual coercion” sanctions men not for forcing themselves on, or physically threatening, women, but for doing nothing more than nagging for sex. Ezra wants men to be punished for doing precisely what, for decades, society has been telling them they’re supposed to do — ask for sex. Ezra's analysis is rife with legal infirmities. Read on.
"Sexual coercion" has been a policy violation at many colleges, long predating the "affirmative consent" craze, but it's very rarely applied, for good reason. Under it, the school can invalidate a woman's manifested assent by deciding that the man’s conduct in obtaining it was too boorish, too overbearing, or too insensitive, even though the “victim” had reasonable alternatives to engaging in the sex act but chose not to exercise them.
In Klein's hypothetical, she's not incapacitated. The guy does not force himself on her. He merely asks, and he doesn't make his move until she allows him. After a couple of rebuffs, she "lets him do what he wants." Klein proceeds to speculate as to her motivations for letting him proceed, and he concludes that it is justifiable that he be punished for sexual misconduct if she later decides to file a complaint.
The problem with Klein's analysis is that it turns centuries of settled law on its head. "Consent" is never assessed based on the subjective, secret whims of the party giving it. The only legal test that is fair and just, the only legal test that works, is whether a party's outward manifestations reasonably lead the other party to conclude consent is present. All of Klein's speculation about her motives is legally impertinent.
Consent in the rape milieu has its roots in contract law, and it is there that we need to seek guidance. Not all agreements formed with apparent assent are legally binding. Duress is a common law concept employed to invalidate contracts due to the absence of the kind of freely given consent that society has decided is necessary to bind people to their promises. The classic example is a loaded gun pointed at someone’s head with a threat that “either your brains or your signature will be on the contract,” per Don Corleone. A contract is voidable for duress if (1) the victim’s manifestation of assent has been induced by an improper threat, and (2) the victim has no reasonable alternative except to manifest assent.
Ezra Klein’s brand of “sexual coercion” fails on both counts. Asking for sex, even repeatedly, is not an improper threat (in case Ezra doesn't know this, rapists don't ask), and being able to say “no” and to get up and walk away is a reasonable alternative. End of inquiry. Big Sister needs to get out of the bedroom.
“Sexual coercion” has its roots in an extremist tradition of rape advocacy that encourages purported victims to engorge the definitions of “rape” and “sexual assault” to include all manner of alleged violations that are neither “rape” nor “sexual assault.” Time once famously wrote: “Catherine Comins, assistant dean of student life at Vassar, . . . sees some value in this loose use of ‘rape.’ She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. ‘To use the word carefully would be to be careful for the sake of the violator, and the survivors don’t care a hoot about him.’ Comins argues that men who are unjustly accused can sometimes gain from the experience. ‘They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. ‘How do I see women?’ ‘If I didn’t violate her, could I have?’ ‘Do I have the potential to do to her what they say I did?’ Those are good questions.’” Time correctly noted: “Taken to extremes, there is an ugly element of vengeance at work here. Rape is an abuse of power. But so are false accusations of rape . . . .” See here.
Writer Joanne Jacobs aptly explained: “In the largest survey of campus date rape, 43 percent of women classified as rape victims had not realized they’d been raped.” Was this because women were hesitant to label rape as a crime? “Hesitant to label rape a crime?” Ms. Jacobs scoffed. “No, they were hesitant to label having sex ‘when you did not want it because you were overwhelmed by continual arguments and pressure’ as rape, which is what happened to most of the ‘victims.’ They weren’t raped; they were nagged.”
Writer Sarah Overstreet once wrote: “Our college students need the tools of personal power and responsibility, not a false definition of rape. So do we all. Lacking the skills or confidence to resist verbal coercion doesn’t make it a crime.”
For decades we’ve preached that when a woman says “no,” the man must stop. Now we are telling young men that when a woman says “yes,” they are still rapists because they didn’t ask in a politically correct manner. People like Ezra Klein trivialize sexual assault to the point that women who truly do not have reasonable alternatives except to give in to sexual abuse are being lumped in with women who merely regretted the exercise of their own free will the morning after. Colleges, spurred by oddities like Ezra Klein, are reimagining “proper” male sexual conduct in an effort to construct a progressive, supposedly female-friendly, sexual utopia. Rape law has never been a clearinghouse to redress every less than ideal sexual encounter, and until recently, our laws didn't punish criminality "in the air." Thanks to the Ezra Klein's of the world, that's all about to change because women have it so bad and those "other" men are so vile.
I could go on and on about Ezra -- a smarmy young progressive know-it-all from a well-to-do family who thinks it's his role in life to disabuse the self-satisfied bourgeoisie of their unenlightened notions. Ezra Klein, do the world a favor, and stop blogging about legal matters. Go teach math in a junior high school and leave the rest of us alone.
More on this ass here.