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Draining The Swamp: Alcohol and Agency

October 10, 2014

The way to handle the relationship between alcohol and alcohol-facilitated rape isn’t to adopt some prohibition-lite approach that shames people (women; it’s usually women that get shamed for pleasures of the flesh).  Not only is it wrong, it doesn’t even work.  The way to deal with it is to recognize that shame and discomfort around sex incentivize the connection between alcohol and sexual situations.  If we want to reduce the rate at which potential victims of sexual assault are intoxicated, the smart solution is to reduce the incentives to intoxicate.

A Brief Review

I am going to TL;DR everything I’ve written about rape, rape culture and the rapists’ social license to operate. here goes:

Most rapes are committed by a single-digit percentage of the population. They are really bad people who know that what they are doing is rape. They do it over and over again. They do it because they like it, they can’t be talked or educated out of it. But they are for the most part rational actors who recognize their own self-interest. The reason they keep getting away with it is because our culture is messed up around sex and gender in big, systemic ways that allow it to happen, sometimes by outright saying that rape is okay, and more often by making it a joke, minimizing it, undermining the victims and especially survivors who report, etc. — rape culture. Some people don’t like that term, and those people and I are not going to have a productive conversation. What the rapists do is figure out the specific loopholes, the circumstances created by rape culture that, if they construct their modus operandi to fit them, will find that their conduct is overlooked, excused, defended, or covered up — that they can get away with it.  Their “social license to operate” is the leeway they get as long as they stick within the areas where society will do little or nothing to stop them.

I’m not going to cite anything for that, because this blog contains over 300 posts, many of which are either discussions of research or analyses of culture around exactly this issue. I’m not really interested in arguing about it, either. There have been active dicsussions on many, many of those posts, and I’m just summarizing.

So this ran at HuffPo.  It’s about alcohol and rape, and readers here know that usually, when someone starts yammering on about those girls and their drinking, I call them a rape apologist piece of shit and lambaste them as part of the problem.  What I want to explain is that I stand by that, and I largely agree with what Dr. Fulbright says, and those two things are not inconsistent.

The Surrender Caucus Gets It Wrong:  For Example, Emily Yoffe

Regular readers know that I really dislike Emily Yoffe, Slate’s Dear Prudence.  I have called her part of the “surrender caucus” (my term) on this issue, and though she seems to understand or at least pay lip service to an understanding that rapists are mostly a group of discreet bad actors who know what they are doing and are rational, she insists of approaching policy as though they were a weather system that could not be affected by human activity but only avoided.  She is therefore a great example of how to get this badly, drastically, harmfully wrong.  Yoffe’s position in most easily summarized in her smug and dismissive response to a woman whose friend believed she was raped while blackout drunk.  She  said:

I think seeing herself as a victim would keep your friend psychologically stuck, and turning the guy over to the police would have the potential to unnecessarily ruin his life. Imagine watching a remake of Knocked Up in which the Seth Rogen character ends up on the sex offender registry. Your friend’s unfortunate one-night stand should help her realize she needs to learn the difference between taking the edge off and ending up in a walking blackout, and how to stay on the right side of that line. I think your friend needs to see a therapist, not to explore the wrong that was done to her, but to help her process this regretted evening and get her to the point where she can comfortably be in this guy’s presence.

Yoffe has in other places tried to make her position more palatable, though not by much.  But it’s clear here that she is not willing to entertain the idea that the guy did anything wrong, or is a rapist — he’s a Seth Rogen character, just an ordinary guy, sexually penetrating blackout-drunk women, like they do!  It’s clear here that it isn’t so much that she doesn’t think there’s anything we can do about this guy, — she doesn’t think he did anything wrong.  On the other hand, we have what she thinks of the young woman who says she was raped.  (The letter writer was not the survivor, but a roommate who wants to do the dreaded “stay friends with both of them” routine.  Which is impossible.  If one friend says another friend raped them, you can’t be neutral.  Either you believe it or you don’t, and staying friends with someone whose account you believe is a fabrication is wrong.)  What Yoffe thinks of the woman is that she’s a drunk, and needs to get her shit together.  Yoffe thinks this despite a complete lack of record of how often the woman gets seriously intoxicated — for all we know, this was the first time in her life she’s had more than one drink, and she was plied with alcohol by the rapist.  For all we know, she got that drunk because he made her drinks that were much stronger than they tasted and pushed her to keep putting them down.  But that’s not what Yoffe assumes.  Yoffe assumes that she doesn’t know “the difference between taking the edge off and ending up in a walking blackout.”  Yoffe assumes this, obviously, because of the preconceptions she brings to the table, because there is no text available in that letter to support it.

If you start where Yoffe starts, that there may be rapists in the world but the real problem is all these women drinking like nothing can happen to them, then whatever face you’re trying to put on it, and no matter what disclaimer you append, your actual position is blaming victims.  If you start there, you’re not actually going to try to do anything systemic about rape.

Some folks — the Yoffe defenders — surely believe that by finger-wagging at women over their drinking, they are doing something systemic, that if they simply get enough pressure on women not to drink, or not to drink much, then all this will stop.  If they believe that women drinking causes rape, at least that has the virtue of logic.  If rape is a chemical reaction that happens where a phallus forms from alcohol molecules catalyzed by bar cigarettes and dorm blankets, then limiting alcohol will make rape go away!  But rape isn’t a chemical reaction.  It’s a criminal decision.

The less silly Yoffe-siders recognize that’s untenable; that no amount of alcohol in a bloodstream causes one human to become a rape victim in the absence of a person to do the raping.  They implicitly or explicitly decide that nothing can be done about the rapists, so the best or only structural response is to control the potential targets.  In this way, telling women not to drink is of a piece with telling women how to dress.  The smarter surrender caucus members recognize that provocative clothing is laughably unrelated to rape, but believe they are on more solid ground with drinking.  That, in and of itself, isn’t wrong.  Provocative clothing has zero connection to rape, while alcohol absolutely does.  It’s not the part about paying attention to alcohol that’s wrongheaded.  It’s the model where controlling the target is the policy solution.  That’s wrong both practically and morally.

If we take the Yoffe solution to its logical conclusion, we would reason like this:  women drinking alcohol facilitates rape> we need to keep women from drinking alcohol for their own good>  outlaw alcohol.  But we tried prohibition in the US, and the negative consequences are disastrous and there is no chance that’s going to make headway.  So the next solution would be, what, incentivize women not to drink, or not to overconsume?  That’s where Yoffe ends up, and I’m using her as a stand-in for much of the surrender caucus, because that’s where they all end up, unless they are stupid enough to say, “stop dressing like sluts.”

But like prohibition, the negative effects of that approach far outweigh the positives.  There is an ugly history at colleges and in the military, that when they create an incentive not to overconsume, it ends up being used as a weapon against survivors who report.  A survivor reporting a drug- or alcohol- facilitated rape is admitting to intoxication; if that’s a problem, it’s a strong incentive not to report.  Let’s move beyond the formal to the social: Yoffe’s letter does the same thing, in a lower register.  She’s attacking the woman who says she was the victim of an alcohol-facilitated assault, instead of asking why the man was fucking a woman who was in a blackout.  The stigma is so bad that a woman who gets drunk can’t even count on justice if the police molest her in her inebriated state — even with a confession on tape.

 How To Get It Right:  Reduce The Rapists’ Social License To Operate

If creating a disincentive to drink, or drink to excess, is doomed to fail, then do we have to give up on the idea of reducing drinking altogether?  No, and this is the critical difference between Fulbright and Yoffe.  The way to reduce drinking isn’t to punish overconsumption.  It is to reduce the incentives to drink.

Fulbright’s policy proposals don’t facially have anything to do with drinking at all: not dry campuses, not alcohol education or awareness campaigns.  Instead, she calls for comprehensive sex ed, relationship education on campuses that dispel myths about sex, and sexuality-sympathetic healthcare.  Those are not solutions to drinking, but they are solutions to one cause of alcohol consumption specific to sexually loaded situations.  As Fulbright says:

[W]e need to address the fact that many young people feel like they need to get drunk in order to be sexual and sexually active.

We need to own the fact that we’re a society that sexualizes its youth, but that ultimately does not support them in the fact that they’re sexual human beings. …  So is it any wonder that young people see alcohol as an easy solution to their sexual ignorance, decision-making, and anxieties? If wasted, one doesn’t have to deal with underlying discomfort and Puritanical guilt around sex, or worry about the impact of sexual intimacy on another human being, or get submerged in the experience, including matters of the heart. Drunk hook-ups allow youth to keep emotions separate from sex, to skirt commitment issues, to avoid romance, and to stay focused on the self and all of the other reasons they’re in college.

Until we’re willing to address this mentality, and this misguided, positive association between sexual activity and being intoxicated, efforts to counter sexual assault as it relates to binge drinking are futile. Until we’re willing to deal with the fact that young people are sexual people who need more realistic, developmentally appropriate guidance when it comes to sexual expression and satisfaction, the situation is not going to change.

I don’t know Fulbright, and I don’t uncritically sign on to everything she says, but I’m not going to sidetrack just to quibble.  The kernel of it, that alcohol is deployed as a disinhibitor because the culture facilitates ignorance, denial and shame around sexual decisions and desire; that much I agree wholeheartedly with.  One reason young people can be targeted for alcohol-fueled sexual assaults is that if they think they will or want to be sexual, a culture of shame and inhibition incentivizes intoxication.  The way to change that isn’t to punish the intoxication (which is famously a failed approach) but to remove the shame.

That won’t stop drinking.  Nor should it.  Jaclyn Friedman has made the case, I think as powerfully as anyone can, that sometimes tying one on is just fun, and people are going to do it, as part of an overall understanding that life without risk is neither obligatory nor desirable.

Meredith Johnson-White, sex educator and public health professional (and a friend through social media), had this to say:

As long as young women want to have sex, and feel they must drink in order to have sex, they will be more vulnerable to sexual assault. Raise young women who feel entitled to say yes, know how and when to say yes, and respect their peers who say yes, and sexual predators will have one less tool in their belt.

Unlike Fulbright, I do know Johnson-White and I don’t have to guess at authorial intent, and I can fully adopt what she said here.  The meaning of yes and no, their value and virtue, are inextricable from each other.

The Right To Say Yes And The Right To Say No

One thing that consent activists have been consistent about, and that is consistently ignored or misconstrued by our political opponents, is that the right to say “no” and the right to say “yes” are inherently interdependent.  You can’t have one without the other.

A right to say  “yes” without a corresponding right to say “no” isn’t a right.  It’s an obligation.  If “no” isn’t heard, understood and respected; if “no” is frowned on, disrespected, if there’s a lot of downside to saying it, then folks will be pushed into “yes” when they don’t mean it, don’t want it — and then “yes” isn’t really yes.

A right to say “no” without a corresponding right to say “yes” isn’t a right.  It’s an obligation.  This is the world of the promise rings and purity balls, where “no” is mandatory and the only way to say “yes” is to create plausible deniability.

The problem is that we have significant elements in the culture that don’t want a right to say “yes.”  At the extreme end,  some people really believe that infections and unwanted pregnancies are divine retribution for sexual sin, and don’t want technology interfering with that.

This isn’t just about alcohol; many, many of the things that form rapists’ social license to operate are the areas where we as a society are not fully committed to the right to say “yes.”  The rapists’ targets are not just the drunk, but the disempowered in any way — intoxication, but also incarceration, class, racial stereotype, disability, social isolation, formal or subcultural hierarchies; they’ll use whatever leverage they can find.  The tactics they use count on disempowerment, and the best way to arm the targets and bystanders to disarm those tactics is not to make them stay sober, but to help them feel confident in their rights.  Some of these things can only be addressed through other mechanisms, but some are cultural software direct to the end-user — making them feel, in Johnson’-White’s phrasing, which I love, “entitled to say yes.”*  How can we expect young adults to say, “no, you’re pressuring me into something I don’t want” in a culture that pressures them not to stand up for what they do want?  If we act like they’re supposed to apologize because “hookup culture” — that much-mythologized creature of moral panic — doesn’t look like their parents’ college experience, we are basically telling them to build in excuses, plausible deniability, bullshit about it and rewrite the narratives.

The most recent iteration of this is the response to first California’s and now New York’s college consent policy guidelines, requiring affirmative consent as a basis for campus sexual consent policies.  The commentators who oppose this, like the deeply misguided Jonathan Chait, believe that college students are on the whole generally unable or unwilling to actually, affirmatively express consent.  His confusion is understandable; typically in mainstream depictions of sex, there is little or no dialogue, the music swells and the participants presumably communicate telepathically, or never need to exchange information about safer sex, or what kind of sex they like or how they get off best.  This is the message we send, that sex is best with no communication.  It’s a shitty, stupid message, it doesn’t work well and it hangs on only because people are too squeamish even to discuss the media conceit that sex happens without communication.

What we need to be telling the next generation instead is to stand up for their own agency, say what they want, have the experiences they want to have and stand by them.  Because someone fully comfortable with saying, “yeah, I want to fuck” is the person best positioned to say, “no, I don’t want to fuck.”


*the application of “entitled to say yes” as a general policy concept is far more broad than the middle-class college-centered framework of Fulbright’s article.  “Entitled to say yes” could also describe the thinking that the starting point to give sex workers effective redress against abusive johns or law enforcement must be to decriminalize their living,  so they can come forward without fear of prosecution.  It would be simplistic to say, “everyone has to be free to say yes to anything in order to be free to say no.”  I wouldn’t advocate that, because it’s wrong.  But I would be willing to say that any policy approach that has to deal with sexuality and consent, that is meant to defend the right to say no, must reckon with the desire to say yes.  Otherwise it won’t work.

Jennifer Lawrence Does Not Owe Us

October 8, 2014

As people react to the Jennifer Lawrence Vanity Fair article that I blogged about yesterday, I’ve noticed a troubling theme.  People have not quite criticized her — I’m mostly talking about comment sections and social media and I’m not going to linkfarm that — for the sexually provocative photos that accompany the article, but sort of implicitly criticized her by suggesting that it is weird or inconsistent that she complains about feeling violated by the theft of her private nudes and also relates to her audience in a sexual way.

This is the epitome of not getting it.  Or, rather, it is the epitome of trying to take an issue that is about autonomy and consent, and stuff it back into a Commodity Model framework that aligns her in a whore/madonna dichotomy, where she has to be somehow “consistent” in either demanding to be sexually available or sexually unavailable.

She does not owe us consistency in how she wants to be sexually available to her audience.  Instead, we owe her consistency, in that we need to accept that she can present herself as sexual to her audience when and how she’s comfortable, and not when and how she’s uncomfortable.  That’s what autonomy means for an actor managing a public persona.

She has said not to look at the stolen photos, because they were private and not meant for us.  If she said, “I’m pissed that those were stolen, but I like the photos, so I’m releasing them,” that would be fine, too.  If she said that, she wouldn’t owe us an explanation.  Since she hasn’t said that, she doesn’t owe us a performance of “aggrieved virgin,” any more than she owes us a replacement for the pictures that we’re all not looking at because she said we shouldn’t.  If she now wants to put out work that is sexually charged (as she has before — certainly there was a lot of sexual energy in her American Hustle performance),  work that she controls and that she’s okay with all of us looking at, that’s her choice.


The only consistent theme is that she doesn’t have to be consistent in what she consents to.  That’s how consent works.  I saw one comment that said it was strange that she said both don’t look at my breasts in the stolen pictures and here are two thirds of my breasts in Vanity Fair.  There’s nothing wrong with that.  If a sex partner says, “I don’t want to fuck, but if you want, I’ll give you a blowjob,” that’s a perfectly valid choice.  Why would it be any less valid to say don’t look at the stolen nudes, look at the seminudes I’m okay with instead? Having sex with someone once isn’t the same thing as agreeing to have sex with that person for all time.  Having sex with lots of people isn’t agreement to have sex with every person.  Having one kind of sex isn’t agreement to have another kind of sex.  That’s how consent works.  It’s not a ratchet.  It’s not “once you do this, you can never go back.”  I don’t think that consent is a matter only for people having sex with each other in private.  I think that it also goes for the sexual relationship, such as it is, between performers and fans.

Think about the logic as it applies to someone who, unlike Lawrence, has been naked for an audience.  Someone whose genitals appear on film, like Kevin Bacon or Rosario Dawson.  If someone hacked their private nude photos, would that be fine because we’ve seen them completely naked?  No!  That’s absurd!  They would be harmed in precisely the same way as Lawrence has been, and not any less!  People who think that the harm to Bacon or Dawson from hacking their personal nudes would be less serious are adopting a mode of thinking not differentiable from saying that when a virgin gets raped it’s worse than if it’s a sex worker.  That’s fucked up.  That’s wrong.  That’s both factually and morally indefensible.

Lawrence doesn’t owe it to us to be a “good girl” or a “bad girl” or any kind of “girl” to stand up and demand her right to keep her own property, to not have people invade her privacy.  That’s not a cookie we give her for good behavior.  It’s a right, and not one she forfeits because the way she presents herself confounds our expectations.

Jennifer Lawrence Says Don’t Look At The Pictures

October 7, 2014

Vanity Fair has an interview out wherein Jennifer Lawrence addresses the stolen nude photos.  She says that it was a sex crime, and she addressed the complicity of everyone who looks:

“Anybody who looked at those pictures, you’re perpetuating a sexual offense. You should cower with shame. Even people who I know and love say, ‘Oh, yeah, I looked at the pictures.’ I don’t want to get mad, but at the same time I’m thinking, I didn’t tell you that you could look at my naked body.”

Here’s how I look at it.  I imagine she was my neighbor, my friend, and she came and knocked on my door and told me that her account was hacked and someone might send me nude photos, and would I please delete them and not look at them.  Would I really look at them anyway?  No, I wouldn’t, and so I didn’t.  Some folks may be saying to themselves, “well, I looked.  Are you saying you’re a better person than me?”  I am saying that. I’m saying that because the victim is saying that.  And I’ll tell you what I tell my kids:  you can’t change the past, but you can change the future.  Unfortunately there will be a next time, and next time you can make the right choice.

I suspect, if this experience hasn’t completely soured her on it, Jennifer Lawrence will eventually do a nude scene in a major movie, in a way she has some say in.  Hopefully it will be work she’s proud of, and she will want us to show up to see it on the big screen, and if and when that film comes out, I’ll be happy to pay up and stand on line.  That’s what I’d do if she was my friend, and that’s what I’ll do as a fan.

About Nungesser: The Man Emma Sulkowicz Reported For Rape

October 2, 2014

I already wrote about Emma Sulkowicz.  She reported a man to Columbia University for raping her, but the panel cleared him.  She went to the police, but they treated her poorly and did nothing.  Then she formulated a performance art piece, Carry That Weight, which has been widely covered and has received a great deal of support both within and without the university.

Her parents wrote a letter identifying the man she reported, and shedding significant additional light:  the same man, Jean-Paul Nungesser, was previously adjudicated responsible in an incident of violence sexual assault against a different female student, following her to her room and shoving her inside.  And Emma Sulkowics made her decision to report him after learning from other women about incidents indicating that his behavior was part of a pattern.  Here’s one thing they say:

3) The fact that Nungesser had previously been found “responsible” by a Columbia panel for following another Columbia student to her room, shoving his way in, forcefully pinning, and groping her was not allowed as evidence in Emma’s hearing. Just days before her hearing, Dean Valentini granted an appeal of this verdict, which re-opened the case and consequently disallowed it as evidence. This effectively hamstrung Emma’s case. (An aside: The final hearing for this other case was scheduled and held at a time the complainant had specified that she was not available to testify. Without her presence, the original panel’s “responsible” verdict was easily overturned.)

Much of what they say is about Rosalie Siler, the Columbia minion who acted as Sulkowics’ sole advisor and who, her parents say, essentially hindered rather than helped the presentation of the evidence of Nungesser’s misconduct.  One might suspect, given both that the grant of appeal managed to fortuitously keep the prior conduct out as evidence in Sulkowics’ hearing, and that the University scheduled the new hearing for a time when the complaining witness was unavailable, and that the Sulkowicss allege that Emma was advised not to get her own lawyer (though Nungesser had one) and that her advisor did more to interfere with her case than to present it, that this was an effort to protect Nungesser.

The social dimension of the current political moment is this:  universities are not willing to do much of anything to stop rape, but are willing to put quite a lot of effort into hushing it up, including putting a thumb on the rapist’s side of the scale in their adjudication processes.  That’s what Columbia here stands accused of.

California’s Affirmative Consent Law: Beyond The Bullshit

September 30, 2014

A federal judge once said to me, when I was just a young’un, that this is how you read a statute:  “from left to right; stop at punctuation.”  You don’t know what this thing says unless you read the text.  TL;DR from the headlines does not an analysis make.  So here is the pertinent text, the text of section (a), which is the part people are talking about:

(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
First, the plain language tells us that this statute is not a criminal law, or an obligation that the State of California imposes on any person directly.  It is, rather, a change to what California requires of colleges to be eligible for state financial aid.  So it doesn’t apply to any college that already forgoes aid for any reason, for example.  It has no impact of people who are not in college and not employed by a college, except in the sense that it may change the cultural conversation.  If you’re in high school, or not in school and working, or not in school and not working, or in the service, or in any other walk of life except attending college in California, this has no legal effect on you.
Second, all it requires is adoption of a policy that the school is required by federal law to have, and that that policy contain certain elements unique to this statute.
Subsection (a)(1)
One of the unique elements, the Affirmative Consent standard, is set forth here, and it isn’t what some people seem to be assuming.  The common rhetorical device is that affirmative consent requires some particular form of communication — notarized contract, filled out in triplicate, raised seal, etc.  Far be it from  me to criticize anyone whose kink is to have a bunch of suit-wearing functionaries watch their sexual encounters.  De gustibus non disputandum est, which I think is Latin for “your kink is not my kink but your kink is okay.”  However, the idea that that’s what the statute requires is just bullshit.  It’s not in there.
Here’s the heart of it: ” “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.”  (Emphasis supplied.)  It doesn’t say what form it has to take, or how one has to ascertain it.  It doesn’t say anything about filling out a form, using an app, signing a waiver.  It doesn’t even say you have to say any particular word.  It doesn’t even require the word “Yes”!  It just says that the absence of “no” isn’t necessarily yes, and it’s your responsibility, if you’re a student in a college in California, to make sure you have a yes.  You can do that any way you like; it’s up to you how to see if you  have a yes.
There are lots of ways to ask for a yes.  If you lean in to kiss someone and they lean in to kiss you back, that’s yes.  If you ask someone if they want your cock and they say, “I want your cock,” that’s yes, and if they put their mouth on it, that’s yes, too.  If you’re fucking someone and holding them down and you’re both sweating and maybe bruised and you lean in and your hand is on their throat and you say, “can you still say no?” and they say, “yes,” that’s yes.  We’re not kids here, right?  We’ve all been there, and we know that people say yes, mean yes, shout yes and do yes in sex all the time.  Those of us who don’t want to force anyone to do anything they are not into, don’t want or need sexual encounters where people are not doing yes as hard as they can.
The rest of (a)(1) is pretty straightforward — it simply lists myths that won’t fly.  Consent to sex with someone one time isn’t consent to sex with that person every time.  Shouldn’t be controversial.  The absence of no isn’t yes.  Since people who are passed out can’t say no or yes, this should be obvious, and  is impossible to intelligently argue against.  I know CeeLo Green said otherwise, but that’s because CeeLo is a very bad person (and now, a convicted felon). Good vocalist, bad person, sorry to break it to you. Consent can be revoked at any time.  Again, impossible to intelligently argue with.  People are free at any time to decide the sexual encounter is not working for them, put on their c lothes and go get a slice of pizza.  This is not up for debate.
Subsection (a)(2)
Another element in section (a) is the standard in the disciplinary process in (a)(2).  It’s not a defense to say you believed  someone consented:
(1) because you were too drunk or too reckless to know whether they were consenting or not.  Good rule, right?  If I’m so fucked up that I may rape someone, that’s kind of like being so fucked up that I shouldn’t drive home because I might crash.  It was an adjustment for a lot of people when we began actually enforcing drunk driving laws in this country!  People said, “but how am I supposed to get home from the bar!”  And we all decided that not having drunks kill and maim people was important enough to make them take responsibility for how they get their drink on, and we did, and the republic did not fall.
(2) because you didn’t bother to find out if you had a yes.  This is the teeth that makes (a)(1) work.  If you know you have a yes, you’re good to go.  If you don’t know you have a yes, it’s on you to find out.  If you don’t, and this is important, if you acted reasonably to find out, you’re still okay.  Reasonably under the circumstances is a hard standard to argue against.  The only ways to argue against it are either (a) I want to act unreasonably and it should be okay, or (b) what I think is reasonable is not what the people enforcing this think is reasonable.
The nightmare scenario that rape apologists trot out is the one that Katie Roiphe made up (because she lives her life to piss on everything her mother stands for), the “morning after regret.”  I think it is impossible to find a case where someone was convicted of rape because one of their consenting partners later claimed nonconsent — in all the terrible history of black men being falsely accused of rape, almost always there was no actual sexual contact at all, and the rape was simply a socially convenient fabrication from whole cloth.  See the Central Park Jogger case, where the teens convicted and imprisoned had no contact at all with the victim — who was hit over the head and raped by an entirely different person, who was a serial rapist and died in prison.   In instances of political hoaxes like Brawley, likewise the events never transpired, and in the Duke Lacrosse case one of the accused was demonstrably not on the premises.  Amanda Marcotte has repeatedly thrown down the gauntlet (see comments, she’s said this before) for someone to identify an instance of false conviction arising from an actual sexual encounter between the accuser and the convicted defendant.  Nobody seems to have one.
This law protects against that scenario, fanciful as it might be.  If you act reasonably under to circumstances to see if you have a yes, you’re okay.
The Power And The Danger Of “Reasonable Steps”
That phrase, “reasonable steps, in the circumstances known … at the time” is, not incidentally, the weakness of this bill.  Law doesn’t interpret or execute itself, and this will  be interpreted by conduct counsels and deans in colleges, and “reasonable” will be what they think it means.  I’m not worried that someone who says  “hey, are you still into this” and gets “yeah” will be held to have acted unreasonably.  Sure, the perpetual whinge machine of MRA outrage will declare that “reasonable” will mean mind reading or seeing the future or having a notarized contract or some such nonsense.  But that’s like Christian extremists who complain that they are being discriminated against because they can’t bully gay kids in school — they have a persecution complex which has no relationship to objective reality.  Given colleges’ infamous disinclination to hold rapists accountable or adjudicate them liable, there is no reason to suspect that the interpretation of “reasonable” with be anything other than a mainstream-friendly view of “reasonable.”
I am worried that some asshole’s approach to consent will be, “hey, she was into fucking me, and then I took the condom off and stuck it in her ass before she knew what I was doing, and I didn’t know she wasn’t okay with that,” and that will be held to be reasonable, because people who should know better make excuses for people they like.  See generally Julian Assange and his defenders.  “Reasonable” inherently imports norms that may not work for people in their own lives.  If someone is trans or genderqueer and says, for example, “don’t touch my front hole,” I think that’s totally reasonable.  But someone who has a cis and heteronormative and penetrocentric framework for sex may decide that “reasonable” is the same as what they think “normal” is.  These are macro problems with how law operates; I offer no easy solution.
But it’s not just people whose gender or sexuality fall outside the mainstream who could find that the concept of “reasonable” fails them.  If a school were to decide that, “I asked if she wanted to come back to my room and she said yes” is reasonable inquiry and constituted a basis to assume consent to anything that happened thereafter, that would be a very bad standard.  Someone who wanted to exonerate every rapist who fit a certain socially comfortable paradigm probably could, just by applying the term “reasonable steps” to some action the rapist took or claimed to have taken.
That’s also the weakness of the ridiculous app that turned up in the news recently.  It makes no provision for withdrawal of consent (how could it?) and it makes little or no provision that I can see for sex to be something other than, “we do it in the way it looks in the movies.” So it’s useless for its intended purpose, and whatever its creator’s intent,  its actual function – I’ll go farther than Marcotte here –  is to create a defense that rapists can use later, after their targets realized that what was going to be done to them wasn’t what they were good with.
Subsection (a)(3)
Subsection (a)(3) imposes a “preponderance” standard, which is already the standard for civil liability in almost all areas, and the standard colleges have to use under the current Department of Education guidance federally, so that doesn’t change anything.
Subsection (a)(4)
Subsection (a)(4) says that there are three circumstances where, if you know this thing is true, you know the other person can’t consent: (a) unconscious; (b) too drunk or high to understand the “fact, nature or extent” of sexual activity; and (c) unable to communicate.  (a) and (c) don’t merit any discussion.  Unconscious people can’t consent, and if people are unable to communicate, you don’t know if they consent.  (b) is only slightly more elastic.  It imposes a standard for how drunk is too drunk to fuck.  Too drunk to know the fact of sexual activity is obviously too drunk to consent.  Too drunk to know the nature or extent of sexual activity requires some actual interpretation, as “nature” and “extent” don’t define themselves, but if someone is so messed up that they don’t know for example which hole a cock is in, they shouldn’t be having sex, and I think that’s the most obvious interpretation of what that means.
This Is Not A Revolution In Practice (But I Can See It From Here)
So that’s what it says.  It’s not a revolution in practice.  There are no heads in tumbrels and nobody is being carted to a reeducation camp.  From the howling, you might have surmised that this bill requires all Californians to get the late Andrea Dworkin’s permission to have sex, gently, while lying side by side, and only half way in.  That’s bullshit.  Under this standard, California’s college students are free to get their sex on any way they see fit, and communicate about consent any way that works for them.  It just clarifies that they can’t assume it, they have a responsibility to find a way to communicate about it.  That’s radical in theory, but pretty pedestrian in practice.
This is an evolution in concept.  It’s a very non-radical bill, imposing in a very careful and mainstream-friendly way what is a gradual and evolutionary paradigm shift.  But the evolution in paradigm is more important than the operation of the policies under this bill (in at most a few hundred conduct counsel proceedings) ever will be.  Just the cultural conversation about the bill has made Yes Means Yes, the idea of affirmative consent and sex as process, part of the mainstream national conversation.  The best defense of the old, Commodity Model, women as gatekeepers, paradigm was not to discuss it at all — but just to assume it.  It doesn’t hold up well to scrutiny.  It’s being dragged into the sunlight now, and in sunlight it withers because, quoting Brandeis, “sunlight is … the best of disinfectants.”
That’s why I don’t mind the people arguing against this bill.  By arguing, they are keeping the conversation going, and by doing that, they are losing.  If they were smart, which they are not, they’d ignore it and let the media die down, and push quietly for interpretations of the standard that don’t change anything.  But they’re not.  Like Todd Akin, they want to spew their extremism, their poorly informed and ideologically driven beliefs, their persecution complex and feverswamp paranoia.  So they’ll keep arguing, and if they keep arguing, the keep losing.
 Looking West into the future from here with the right kind of eyes I can see the arc bend.

Fraternity Roofie Conspiracy

September 19, 2014


In some corners of the rape denial universe it is popular to say that this doesn’t happen, that all reports of drugged drinks are merely voluntary overconsumption.  There are two kinds of people who say that: (1) those who have chosen to believe it, because they don’t believe anything women say anyway and because it’s convenient for them to believe it; and (2) those who know first-hand that it isn’t true, but want to protect those who deliberately and involuntarily intoxicate others.

When people say, “rape culture,” some people say that there isn’t one.  Even some people who should know better say that. Everyone agrees that rape is bad, right?  But they don’t.  In the comments and threats that assail women who speak out about rape on the internet, when the trolls know people are unlikely to uncover their identities, they say what they really think.  They approve of rape.

These allegations admit of no possibility of accident or miscommunication. Instead, this required a conspiracy of the bartender and the doorman, at a minimum, and probably at least the silent complicity of several members. Someone said, “let’s roofie a bunch of girls …” and someone else thought it was a great idea.  As it became clear that someone wasn’t joking, but was actually planning and preparing, nobody, nobody, said, “no, actually that would be a felony and we cannot do that.”  If you want to know what “rape culture” is, it’s a culture where someone could raise this idea and instead of a chill falling over the whole room, the other people either strain to pretend it’s a joke or gleefully join in.  If you want to know what “social license to operate” is it’s that the idea that women at fraternity parties are targets to be intoxicated and sexually molested is so powerful that the guy that thought this up not only had friends willing to defend his idea, they agreed to help, and they believed that they would get away with it.

As a general moral proposition, to hell with loyalty. If you are ever so loyal to any person that, when that person says, “let’s rape someone,” it even occurs to you that going along with it is a viable option, your moral compass is shot and you need to cut all ties with every single person you know, pack up and walk as far as you can get into the most desolate wilderness until the ruinous effects of your social environment wear off and you once again develop the ability to hear your conscience.  You.  If you’re reading this now, and you’re thinking, “well, I don’t know, I might …”  Stop.  Stop, turn off the computer, and pick a spot on the map where nobody is, and go there.  Until you do, you’re a danger to us all.

Off To College Is Too Late For The Consent Talk

September 8, 2014

I am a fan, and a friend, of both Amanda Hess and Heather Corinna, and it should come as no surprise that I think this piece in Slate is really useful.  However, the preface to Amanda’s interview situates it with college back-to-school season.  From a news standpoint, this makes sense.  The US media is belatedly and rightly focused on colleges mishandling sexual assault (Emma Sulkowics’s performance art activism at Columbia is the latest story to get broad coverage). But from a parenting perspective, it’s an easy, comforting and wrong way to analyze it.

Heather Corinna, who has been down this road more times than I can count with interviewers much less savvy and receptive than Hess, positions consent and bodily autonomy as a lifelong process and a part of parenting that starts in the diaper stage.  Hess had the good sense to let Heather get her ideas out.  In my own parenting, I reached the same conclusion, and I started talking about consent with my own kids as toddlers, something I wrote about in this old post that recently went back into circulation after a Facebook page picked it up.

Good News/Bad News:

  • By the time kids are off to college or college aged, they may have established patterns and expectations for consent and communication that have already shaped their relationships and sexual development.
  • But getting in front of that curve doesn’t have to be uncomfortable, as it’s easy to make a fairly seamless transition from the kind of broad consent-and-autonomy discussion I wrote about in If She’s Not Having Fun You Have To Stop, to the kind of more express advice teens will need to navigate their own needs.

It’s Better To Be Early Than Late

I think it’s fair to say that a lot of young people experience a lot of partnered intimacy, kissing and more, years before they finish high school (though for various reasons big, public studies focus on penetrative sex and it’s hard to find good data on how kids develop to that point).  They’re working out on their own who kisses who, who puts their hands where, and even if they are not having intercourse or oral sex, they are forming expectations and patterns.  If we let them absorb a culture that boys initiate and girls gatekeep (the heteronormativity! The penetrocentrism! Do we even have a pop-culture paradigm for same-sex adolescent partners? For nonpenetrative intimacy that is a goal in itself and not a waystation? And we definitely don’t have pop-culture paradigms for anyone too far outside the mainstream … trans, non-binary, etc.) then it’s just blind luck whether they find the wherewithal to question that.  Of course as a parent I hope my kids will keep developing and changing right into adulthood, so maybe they can make use of things that I say in their late teens and twenties even if those things might have been more useful earlier.  I hope that, but I’d rather be out in front.

I think part of the reason that some parents don’t want to talk about consent and sexuality with their kids, or about reproduction and STIs with their kids, is the view that bringing it up sends the message that the parents think they are ready.  I think that’s a self-fulfilling prophecy — to the extent it sends that message, it means I didn’t start early enough!  Kids are going to hear and see references to things like pregnancy and condoms all through their lives.  If they hear, “you don’t need to know what that’s about” until their mid-teens, and then their parents suddenly say, “okay, I guess you’re old enough to hear this now,” well, they may take that as an indication that they’re the right age to make use of the information. I understand why that becomes fraught for a lot of parents.  If these things are treated as a matter of scientific inquiry, like why the sky is blue and why some birds nest on the ground, suitable for an explanation in age-appropriate detail at any time, then it sends no such message.

Folks with a certain set of cultural leanings seem to be integrating the notion that the one “big talk” model doesn’t work with sex, biology and safety.  Well, it doesn’t work with sexuality, relationships and consent, either.  A “big talk” will never time it right.  It will always be too early, or too late, or both.  I think in the age of the internet, kids less often live in an information vacuum.  Once, if a kid didn’t get an answer from adults, the only other option was friends, who were generally clueless.  Now, there’s an opposite problem: too much information, widely varied in quality and accuracy, slant and agenda.  Parents can’t keep their kids from getting information by refusing to answer questions.  They might as well say, “go look for the answer yourself and don’t tell me what you find,” because it has exactly that effect.

The Shallower the Slope, The Smoother the Ride

The way our children integrate consent into their lives has a learning curve.  I don’t know of anyone who thinks we should start teaching our kids about consent by talking about sex.  As Heather points out in the Slate interview, the first lessons in consent are about kids, privacy, autonomy and their own bodies.  We can teach them that they don’t have to give their uncle a kiss if it makes them uncomfortable, and that they can bathe themselves alone when they’re able.

Our children’s first experiences of negotiation don’t happen in the sheets; they happen over dolls and toys.  It’s a lot better to learn what’s making your needs known and what’s bullying your partner when the question is “do we play school, or alien robot attack.”  It’s a lot better, and it’s highly transferable.  The kid who thinks, “I have to play the space game that I don’t like because the other kid wants to” is not going to suddenly act differently with a prom date, and the kid who thinks, “anything I do to make them play my game is fair, because what I want is all that’s important” will think exactly like that after prom, too.  They will, unless we step up as parents.  I don’t believe it’s “helicopter parenting” to talk to our kids about how they play with each other.  I believe it’s helicopter parenting to jump in and direct them.  That’s counterproductive.  Giving them the solution keeps them from ever developing the skills, and it’s the skills that are the point.  But neither is a “life is tough on the savannah” approach good for all kids, and talking to them and guiding them about how they interact with their peers has always worked for me.

I think the way we can teach this stuff is to think about the big picture early, and start teaching the general principles long before our kids are thinking about dating and intimacy.  It’s easy to connect it back.

Think about what I might want to say to my kids about consent as teens.  Things I want them to know:

  • Yes means yes.  You should affirmatively make sure your partner is good with what you’re doing.
  • You have to be able to communicate about what you and your partner want in order for everyone to be happy and have fun.
  • There is no such thing as “working out a yes.”  Just because you can get someone to say, “okay, I’ll do what you want,” doesn’t mean they are into it or enjoying it, and it’s not fun unless it’s fun for everyone.

I don’t have to wait until they’re having sex to teach those values.  We don’t even have to be talking about sex for me to teach those values.  I can teach those values to kids old enough to ride bikes and play Minecraft.  I told my kids at two,  “it’s not fun unless it’s fun for everyone.”   I’ve already said,  “it’s not right to guilt-trip your friends into playing Minecraft because that’s what you want to do.” The moral principle doesn’t really change, so I’m dealing with the day-to-day of having friends over and having elementary school relationships.  But at the same time, I’m laying the groundwork for the conversations I’m going to have with them as teens:  whatever you do with your partners, it’s not okay unless it’s good for everyone.  If someone’s not having fun, you want to make space for them to say they want to stop, and you have to listen and respect that.  You have to talk to each other about what you want to do so you’re both having fun.  Just because you can get someone to say, “okay, I’ll do what you want” doesn’t mean they’re really into it.  The principles are basic life lessons about being fair to other people, and expecting that people are fair to us.  Only the details change with age.

Values Are Inherited

Our culture makes a big deal about adolescent rebellion, and by doing so convinces people it’s the norm, when in fact people generally adopt their parents’ values to a large extent.   Popular culture focuses on the exceptions mostly to give voice to parents’ fears.  But what usually happens is that your kids pay more attention to what you believe than you appreciate at the time.  They hear everything you say … including “put away your laundry” and “clean your room.”  (Getting them to do it is beyond the scope of this post.  And, sometimes, my capabilities.)  They see what you do, they hear what you say, and they integrate it so much that, whether they adopt it or reject it, it’s part of them.

And there’s the problem.  They see us more clearly sometimes than we see ourselves, and if we’re full of shit, they feel it even if they can’t articulate it.  If the way somebody thinks about sex and consent is that boys will always push for whatever they can get and girls are either the “good kind” or the “bad kind,” they are going to have a hard time communicating something different to their kids.  People who think that “some girls” are “asking for it,” raise daughters who can’t tell their parents if someone does something they didn’t agree to.  People who think that girls say no when they mean yes, at best, will teach their sons to ignore anything that is a soft refusal right up until they’re sure they’ll get in trouble.  Those attitudes pop up in the comments on anything about rape.  Those trolls are not all antisocial teens or loners living in isolation.  Some of those comments are from parents who show up at my school’s PTA meeting; that’s what they say when they don’t have to stand by it, and that’s what their kids will sense, and my kids are going to have to deal with that.

Protect Yourself At All Times

Feminists call out almost any attempt to shift a discussion of rape onto what the survivor could or should or might have done as victim blaming.  Because it is.  And feminists usually jump on every discussion about how women should restrict themselves to “prevent” themselves from getting raped, because it takes the focus off the rapists, and because it’s not effective, and because it’s not fair.  That’s correct.  And people sometimes respond by saying, “are you saying there’s nothing we can do?”  Well, I do know something we can do.  And it’s not teaching my daughter self-defense (though there are other reasons to do that, and the physical confidence that comes with it is a positive, etc.)

The most important thing to teach our kids is to respect their own boundaries as much as they respect others’, and respect others’ as much as they respect their own.  The way the culture works to create victims, the most effective way, is by gradually telling some people that they have to go along with things they don’t want.  There’s more to it, of course.  Abusers have ways of finding kids who lack supportive adults, who are cut off and vulnerable and won’t be listened to; all that is complex and not what this post is about.

This classic from Harriet J. says it best:

[W]omen are raised being told by parents, teachers, media, peers, and all surrounding social strata that:

it is not okay to set solid and distinct boundaries and reinforce them immediately and dramatically when crossed (“mean bitch”)

it is not okay to appear distraught or emotional (“crazy bitch”)

it is not okay to make personal decisions that the adults or other peers in your life do not agree with, and it is not okay to refuse to explain those decisions to others (“stuck-up bitch”)

it is not okay to refuse to agree with somebody, over and over and over again (“angry bitch”)

it is not okay to have (or express) conflicted, fluid, or experimental feelings about yourself, your body, your sexuality, your desires, and your needs (“bitch got daddy issues”)

it is not okay to use your physical strength (if you have it) to set physical boundaries (“dyke bitch”)

it is not okay to raise your voice (“shrill bitch”)

it is not okay to completely and utterly shut down somebody who obviously likes you (“mean dyke/frigid bitch”)

If we teach women that there are only certain ways they may acceptably behave, we should not be surprised when they behave in those ways.

And we should not be surprised when they behave these ways during attempted or completed rapes.

Our culture bombards our girls, especially, with lessons that they can’t set boundaries and expect them to be respected.   We shouldn’t be surprised when many rape survivors say they froze and just tried to shut down and hope it ended soon, or that afterwards they didn’t know what to call it or what to do about it – not making a fuss is the demand so much of our culture makes on girls and women.    Calling it rape, treating it like a violation, when it’s about to happen, or while it happens, or in the immediate aftermath, is an act of will that many survivors can’t just tap into.

Our culture teaches boys some terrible lessons, too, and I don’t just mean the ones about ignoring what their partners say or do.  I mean the ones boys learn about ignoring what they want, about putting the culture’s expectations about how they “should” be ahead of what they themselves want.  I mean the messages that cause people to ignore the sexual abuse of juvenile inmates when the abusers are women, the ones that allow women who molest boys to tell everyone, including probably themselves, that it’s okay because boys always “want it,” I mean the messages that make it hard for grown-ass men to say to their partners that they’re ever not in the mood.  That’s real, too, and it’s really about the same thing, when you get right down to it.  It’s about boundaries and whether we have a right to them.

We can do better with the next generation.  No matter how overwhelming the culture around us seems, there is a time in our kids’ lives when their parents are the most important people in their world and we can teach them — if we believe it, if we commit to it — that their boundaries mean something, that they don’t owe anyone access to their bodies, that if something feels wrong it’s okay to want to stop, it’s okay to need to stop, it’s okay to say stop, and it’s okay to expect to be listened to.  We can teach that.  If we tell them, and if we believe it, they’ll believe us.

The kind of self-defense I can give my kids is the belief that they have a right to set their boundaries, and that so does everyone else.  If they feel wrong, if they have the sudden urge to put their clothes back on and leave, then they should and they absolutely can — that’s real self-defense, the kind that matters.  And the great thing is that if they know that for them, they learn it for their partners, too.  I don’t have to wait until they’re packing for college to have that talk.  I started teaching that in preschool.



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