I have a slightly different take on California’s recent decision to regulate college sex. Don’t get me wrong, it’s beyond idiotic, unworkable, even borderline Orwellian. We’ll get to all that.
But I also think it’s incredibly useful. You see, for years I’ve been railing and ranting about the ridiculous myth that liberalism is socially libertarian; that liberals are “live and let live” types simply defending themselves against judgmental conservatives, the real aggressors in the culture war.
That thinking runs counter to most everything liberals justifiably take pride in, as liberals. You can’t be “agents for change,” “forces for progress,” or whatever the current phrase, and claim that you’re not the aggressors in the culture war. Liberals have redefined a millenniums-old understanding of marriage while talking as if it were conservatives who wanted to “impose” their values on the nation.
Most libertarians are surely against racial discrimination, sexism, poor eating habits, homophobia and so on. But their proposed remedies don’t look anything like a liberal’s. Libertarians, for the most part, do not favor racial or gender quotas. They’re against banning big sodas, campus speech codes or forcing elderly nuns to pay for birth control coverage, among other things.
Liberals, meanwhile, are quite open about their desire to use the state to impose their morality on others. Many conservatives want to do likewise, of course. The difference is that when conservatives try to do it, liberals are quick to charge “theocracy!” and decry the Orwellian horror.
Enter Gov. Jerry Brown, whose answer to the alleged “rape epidemic” on campuses was to sign the new “affirmative consent” law. It will require a verbal “yes” at every stage of amorous activity on college campuses.
The incredible overreach of the law has been discussed at great length. The Times editorial board expressed its own sensible misgivings in an editorial before Brown signed the bill into law. “It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms.”
This strikes me as extremely understated, but the sentiment is right. Some defenders of the law say it doesn’t really matter because it will only have an effect when women accuse men of sexual assault. “The law has no bearing on the vast majority of sexual encounters,” feminist writer Amanda Marcotte reassures us. “It only applies when a student files a sexual assault complaint.”
Never mind that it will also likely change the standard of proof in such situations, making it much easier to charge — and administratively convict — students of rape based solely on an allegation. Don’t worry about false accusations, says Think Progress’ Tara Culp-Ressler, they amount to only “about 2% to 8% of cases.” Tell that to people who fall into the 2% to 8%.
Other defenders insist that such concerns miss the point. Ann Friedman of New York magazine rhapsodizes about the law’s positive cultural impact. It will help in “deprogramming the idea that nice girls don’t admit they like sex, let alone talk about how they like it.” She notes that the “law will force universities to talk to all students, female and male, about how enthusiastic consent is mandatory.” And that is great because “Confirming consent leads to much hotter sex.”
Maybe she’s right (though I will never hear complaints that conservatives want to invade the bedroom the same way again). She’s almost surely right about some women some of the time. But as her colleague Jonathan Chait notes, most Hollywood depictions of sex could constitute rape according to these new guidelines. Is liberal Hollywood really that bad at reading the sexual desires of American women?
The upshot of this defense is that the state is justified in regulating sex because some feminist writers are convinced some people are doing it wrong. One doesn’t have to take a position on that claim to wonder whether it’s the government’s place to tell people how to do it right, never mind insist that doing it wrong is synonymous with sexual assault.
And you don’t need a PhD in political philosophy to understand that there’s nothing libertarian at all behind the effort.
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