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Ghomeshi: The Developing Story, And Predator Theory Observations

October 30, 2014

Folks who have Canadians in their social circle are likely awash in it, and folks for whom Canadian media is not on the radar screen may have mostly or entirely missed it:  CBC fired one of its biggest radio personalities, musician and interviewer Jian Ghomeshi.  Ghomeshi ran to Facebook to put out an account where he was fired for his consensual kinks; the Toronto Star put out there account, which was quite different — their four informants collectively allege nonconsensual beating and workplace sexual harassment.  Ghomeshi filed a lawsuit which, according to some experts, is a stone-cold loser, but a clever way for him to smear the accusers while shielding himself from defamation liability, since what he says in his pleadings is exempt from defamation laws.

First Things First: The Presumption of Innocence and its Limits

It states the obvious to say that we don’t “know all the facts.”  Actually, nobody ever does.  Each survivor knows only her own experience.  Ghomeshi knows his own actions and what he saw, but, for example, he can only know what survivors said or did outside his presence second-hand.  Judges and juries know only what the documents say and witnesses testify to, which is limited by the parties’ legal strategies; and the jury may be shielded from things that under the rules of evidence they are not supposed to consider, even if you or I think it might be very important as part of the total universe of information.  Of course we don’t know all the facts; nobody does, nobody ever will.  Judges, juries, prosecutors, employers, friends, sponsors, fans and complete strangers, always, in every case, make decisions as best they can, with incomplete data.  That’s life.  If you’re hoping for metaphysical certainty for all your decisions, move to a different universe.  If you’re hoping for metaphysical certainly just in the case where a person is accused of rape, you should ask yourself why you need better information to make up your mind about that than you did to make up your mind about the last high-profile murder change in the media, and the one before that, where you gleefully declared your near-certainty having heard less than all of the media reports of less than all of the evidence presented to the jury.

Don’t bullshit me, yes you did.

The “presumption of innocence” is a rule of criminal jurisprudence.  In the US, it isn’t explicit in the Constitution, but has been interpreted (take that, constitutional literalists!) as inherent in the protections of the Bill of Rights, particularly the 5th and 6th Amendments, and has been established in Supreme Court cases since the 1800s as a right of people charged with crimes.  Canadians actually have it right in their Charter of Rights and Freedoms (Wikipedia has a handy list of where the right to be held innocent until proven guilty is set forth in various countries’ laws).  The Charter of Rights and Freedoms says:  “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”  Emphasis mine.  See that?  The right applies to people whom the government is trying to convict of a crime.  We, in the US, Canada, the UK, much of the West, have written protections into our governing documents that apply just to the State, because the State has a particular power to throw out asses in jail or stick us with a criminal record, and so we create hoops that the State has to jump through to do that.  With great power comes great responsibility.

But even the criminal justice system only “presumes” innocence for some purposes and not others.  You’re presumed innocent when you’re accused for purposes of the prosecution having to allege conduct that makes out the crime, and then prove every element.  But the police take the accused into custody — they don’t arrest based on trial evidence.  They arrest based on probable cause in the US.  They don’t say, “we have to presume you’re innocent until trial, you’re free to go!”  Judges get search warrant applications and they don’t say, “hey, we have to presume innocence, we can’t search just because someone may be guilty!”  They apply a probable cause standard, and issue warrants to get evidence.  They determine bail on other things entirely, depending on the jurisdiction, like flight risk and danger to the community.

With lesser power comes lesser responsibility.  What is the legal standard you must meet to decide you don’t want to hang out with someone anymore?  Beyond  a reasonable doubt?  Probably cause?  Reasonable suspicion?  Why, none at all!  Nobody gives a shit about your tiny little power to not be friends with someone, and so you can use it for any reason, or no reason, or an unfair reason; arbitrarily and capriciously, as you see fit, the the only recourse the rest of us have is to call you names.  You don’t have to be sure what Jian Ghomeshi did to stop liking him.

The Missing Stair

Cliff Pervocracy’s phrasing is brilliant and in many circles this is a must-read, though too many people have  never heard of it.  The “missing stair” is a rapist in a community that lots of people know can’t be trusted, but instead of excluding the rapist, they attempt to work around his social presence by quietly warning people, so that “everyone knows” to babysit the rapist and keep him from being alone with a potential victim.

There’s a view of rape that some well-meaning people and some not well-meaning people perpetuate, that it’s mostly not-bad people who rape, mostly because they get messed up or confusing messages and don’t know better.  Much of my work on this blog has been about debunking that notion, based on research, particularly Lisak and those who have replicated his results.  The “missing stair” only makes sense in the context of the kind of repeat offender that the Predator Theory describes as the cause of most rapes, and makes no sense in the context of the “accidental rapist” that some others argue for.  Rape isn’t the sort of problem where someone could do it by accident, over and over, until the people around them start to plot and plan to work around it.  Anyway, the “accidental rapist” thinking leans heavily on the idea that “miscommunications” happen by accident, that rapists don’t understand when they are being told “no.”  It turns out that there’s a completely separate body of research that undermines that notion; specifically in the context of sexual consent, people understand soft refusals; the issue is that they challenge or reject soft refusals, not that they don’t understand them.

To very quickly summarize, what I’ve named the Predator Theory holds that while some rapists are one-timers, the majority are repeat rapists, that the distribution is uneven — loosely what’s often called a Pareto Distribution — and that the repeat rapists account for a whole lot of the rapes, so that each rape is, on the whole, much more likely to have been done by one of the repeat rapists, a really bad person who knows exactly what they are doing, than someone who just made a mistake or had a terrible lapse in empathy and human decency one time.

(A note about Pareto Distribution — it’s what people reference with the very rough shorthand “80/20 rule.”  Describing it with language rather than mathematics, it’s a distribution that is highly skewed with a long tail — though I understand the mathematics to impose more constraints on a true Pareto distribution than is implied in the way people use the term.  It was originally a rule about wealth distribution, but it turns out to describe a lot of things, where a few actors or sources produce a disproportionate share of the outcomes or observations.  The most important major claim of Predator Theory is that rape is very unevenly distributed, that a small proportion of the population account for a large proportion of the rapes.  Describing the characteristics of these rapists is a problem that flows from first having concluded that it is important to do so because they are a distinct and critical subset, such that knowing who they are and how they operate is the key step in formulating a policy to reduce rape.)

If this is right, we’d expect a relatively few rapists to have lots and lots of victims.  Here’s where Ghomeshi comes in.

When we first heard about this, he was telling the public that CBC had canned him for his consensual sex life, which he called a mild version of Fifty Shades of Grey.

We now know that he was suspended because the Toronto Star told CBC they were going to run with a story, and we now know what they had.  They had three women who said that Ghomeshi beat them nonconsensually.  These accounts included punching with a closed fist to the head.  They also had one woman who was a Ghomeshi coworker, to whom he said and did wildly workplace-inappropriate things.

If he was a “missing stair,” as Cliff Pervocracy used the term, we would expect that there was more.  We would expect people other than the survivors to have knows.  In fact, in the aftermath of the initial reports, comment threads are full of people claiming that whole vast swaths of the Toronto music scene knew he was shitty, sketchy on consent, shouldn’t be trusted, etc.  So that’s consistent.

I don’t think we can predict how many victims a particular person has, either.  But we now know that Ghomeshi stands accused of nonconsensual sexual contact or violence by not three or four women, but eight, and that now at least one has been willing to use her name.  Another, while not using her name, has literally added her voice.

We also now know that one woman earlier reported behavior that is consistent with what the Mythcommunication research tells us about rejecting or challenging soft refusals; she used her name.  We know that she was targeted for abuse and harassment by his fans, which explains the decision of many others not to come forward until now.

Kink, Cover And The Social License To Operate

The stories about Ghomeshi together paint a distinct picture: he liked to grab and pull women’s hair, choke them, slap or hit them in the head and face very hard, and force them to their knees … and that he did this without warning, without prior discussion, without knowing if they were into BDSM or rough sex and without making any effort to find out.

Ghomeshi has characterized this as BDSM.  As a community, therefore, I say that we stand accused.  He says that what he does is what we do.  As a media reality, as a marginalized and misunderstood group, we can either stand up and define ourselves, or others will do it for us. Too often, it’s the latter.  Authors like Anne Rice and E.L. James write about us, while saying publicly that they are not kinksters.  (In Rice’s case I’m skeptical, but with James, I’m happy to accept her admission that she has not the first idea what she’s talking about.)

We’ve had incidents in the past where people who are engaged in abuse say, “hey, I’m just kinky,” claim consent and expect support.  In response to the terribly Bagley case in Missouri (which produced guilty pleas from every defendant, and long jail terms for most of them) I wrote what I think is an ethical bottom line for us as a community.  That was in the context of a man who claimed that he entered into a permanent master-slave relationship with a  teenager, where she thereafter consented to even the most painful and physically dangerous activities prospectively whether she liked them or not.  But actually, compared to what Ghomeshi has been accused of, that’s a more complex case!  Ghomeshi isn’t accused just of having kinky sex that crossed the boundaries of his partners.  He’s accused to assaulting women with no prior discussion.

I could start the next sentence with “if we as kinksters can’t all agree …”  But I know that we as kinksters can’t all agree.  On anything.  Even basic ethical principles.  Every kinky community has some hardcore misogynists and abusers, and some of them learn to talk in a way that normal people find more palatable and some of them don’t.  But unanimity is an impossible goal.  For more on the problems we see in kinky communities, see the There’s A War On series, which ran seven posts and about 21,000 words.

The best thing I’ve read by a kinkster on Ghomeshi is what BDSM activist and educator Andrea Zanin, also a Canadian, said:

A danger inherent in this kind of media-message success is that the “don’t hate me for being kinky” defence will be used by people who perpetrate non-consensual violence, and that we, as a community, will stand by uncritically – or worse, cry out in support – as victims of violence are once again silenced. I don’t wish to be complicit in someone’s misappropriation of BDSM terminology and codes as a shield for rape and assault.

The mainstream is watching.  If we throw out arms around Ghomeshi and say, “even if he did that, he should be defended,” we will have to live with that.  At The Cut, Kat Stoeffel wrote:

If Ghomeshi had done something nonconsensual, he wondered, “why was the place to address this the media?” In other words: A man’s shitty treatment of women is a private matter until it’s a felony. This kind of ethical flattening gives a man total social immunity in the spectrum of predatory sexual behavior that can’t be prosecuted as rape and paints anyone who criticizes him as attention-seeking and vindictive.

It’s especially frustrating considering the ethical pretensions of the BDSM scene. This is a community committed to protecting its right to play-abuse one another, insisting that play-abuse, when properly executed, is an expression of kink sexuality and a human right. One would think BDSMers would be falling over themselves to protect play-rape “victims” from actual rapists lurking in their midst, threatening the entire community’s claims to safety and play. I’m not saying Ghomeshi is such a person. (Although if three women came away from their dates unpleasantly shocked, he may have been doing rough sex wrong.) Yet when BDSM advocates retreat to a legal definition of rape in the face of mishandled play-rape, they weaken the entire premise of safe, above-board BDSM. The BDSM scene becomes just like the rest of the world: The abused are shamed into silence, so the abusers walk free.

Questioning a person’s sexual proclivities runs the risk of sounding like sex negativity or slut-shaming — this is the progressive mentality Ghomeshi’s lurid mea culpa appeals to. But sex-positive open-mindedness doesn’t excuse misconduct. If anything, it creates a greater responsibility. You ought to be empowered to do whatever you need to do to get off. If that means beating up a woman, and she’s into it, that’s fine. Pretty unimaginative, given the state of the world, but fine. It doesn’t seem like too much to ask that you are, then, extra careful not to abuse the very obvious power dynamic at play.  [Internal link removed.]

What Zanin and Stoeffel are both talking about is a kind of what I call “social license to operate,” the specific ways in which, if a rapist or abuser adopts a particular way of operating, he will be supported, defended and protected. Ghomeshi used celebrity and position for a long time, and now that this has failed to keep the survivors silent, he is trying to throw the mantle of consensual kink over himself as a defense.  In a community with no unity, whether this works is a scrum, and more of us have to push harder.  The marketplace of ideas is just as imperfect as other markets, and good ideas can be shouted down.  So if we care to be heard, we have to stand up and shout that what what we have heard is not acceptable, and we don’t defend it.

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
by

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
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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
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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

This.

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.

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