California has always been a laboratory for liberal thought. Now one of the state’s latest experiments is dividing top liberal thinkers.
In September, Gov. Jerry Brown signed a new law mandating California universities that receive public funding to require students to get “affirmative, conscious, and voluntary agreement to engage in sexual activity.”
Writers have called this the “yes means yes” standard, in which consent for sex has to be explicit. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the law says.
So what’s the big deal?
Consider it a clash between those who believe the law is too intrusive and those who believe intrusiveness is the entire point.
College officials and politicians across the country have struggled over how to fight sexual assaults on campuses, which is why Vox’s Ezra Klein supports California’s law — even though he calls it “terrible.”
“If the Yes Means Yes law is taken even remotely seriously, it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and this is also the case for it,” Klein writes.
Citing a federal survey that says one in five college women report an attempted or completed sexual assault, Klein argues that “everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.”
But New York magazine’s Jonathan Chait took exception to Klein’s argument that a culture change will necessarily bring “cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations.”
“He is not merely arguing that, to make an omelet, one must break some eggs,” Chait responds. “He is arguing for false convictions as a conscious strategy in order to strike fear into the innocent. This is a conception of justice totally removed from the liberal tradition.”
For similar reasons of intrusiveness, libertarians have also objected to California’s new law.
“The reality is that much of sex is not consensual — but it is also not non-consensual. It resides in a gray area in between, where sexual experimentation and discovery happen,” Shikha Dalmia argues in Reason magazine. “Sex is inherently dangerous ... trying to shoehorn sex into a strict, yes-and-no consent framework in an attempt to make it risk-free can’t help but destroy it.”
But in The Nation, feminist writer Katha Pollitt argues the opposite. “On paper, the new California law mandating an affirmative consent standard for sex between students in the state university system is a feminist dream come true,” Pollitt writes.
The law won’t stop rapists who will simply say later that they had consent, Pollitt says, but she argues that California’s standard will help nudge public norms and expectations about what consensual sex looks like.
“Pundits, hold the jokes about sex contracts and the hysteria about most sex now being rape,” Pollitt writes. “In a couple of decades, affirmative consent will seem quite normal. And that will be a good thing.”