The opening line of the Daily Californian editorial was shocking:
The prevalence of sexual assault on college campuses across the country has reached the point where the need for sweeping institutional reform is undeniable.
If it’s undeniable, then it must be so, and yet the evidence of it appears to be largely relegated to baseless statistical claims of vague and undefined offenses. I’ve looked. I’ve asked. There is empty rhetoric up the ying-yang, but no substance behind it. And from that, it’s now so prevalent that it’s undeniable?
Of course, if it’s undeniable, then it must be fixed. It simply must. And so a bill has been introduced in the California Senate to end the plague of sexual assault on college campuses. Hans Bader explains:
The affirmative-consent bill, Senate Bill 967, does not explicitly require verbal permission to demonstrate consent, although it warns that “relying solely on nonverbal communication can lead to misunderstanding.” But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex. The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the ‘affirmative consent standard,’ which means that ‘yes’ only means ‘yes’ if it is said out loud.” The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity makes SB 967 a step in the right direction.”
This isn’t the first time the idea of “affirmative consent” has been thrown against the wall. Amanda Marcotte at Slate’s XX Factor (get it?) raised it recently, generating more than 1400 comments, most ridiculing the sheer insanity of her argument. She was nonplussed, as she’s used to being laughed at. And these come from the sort of folks interested in the feminist agenda, since others aren’t spending their time reading her tripe when there are more thoughtful things to read.
Hans offers some examples of his own that raise questions about the meaning of all this, whether his being hugged by his wife and daughter without prior affirmative consent would make them guilty of a sexual assault, or more to the point, whether the normal course of sex makes the notion of affirmative consent (and, lest this detail be missed, on-going affirmative consent, since consent can be withdrawn at any moment converting consensual sex to rape) an impossible minefield to navigate.
I have a daughter. I have a son. I want one not to be raped, and the other not to be accused of rape. Despite the assumption that will certainly be made by those whose sensibilities are offended by my failure to pray at the altar of feminist sensibilities, I am neither insensitive nor unconcerned. It’s not that I fear that my daughter will be raped every time she goes out at night, but that I am well aware, as a criminal defense lawyer, that bad things happen. I don’t want anything bad to happen to my daughter.
But “bad” has to mean something.
Yet, the proposed law doesn’t stop at the absurdity of affirmative consent. Three additional components are in there to make it truly effective at ending this epidemic: It reduces the evidentiary standard to preponderance of the evidence, it requires procedures for “anonymous reporting,” and it presumes all accusers to be “victims.”
The rationale behind these changes has been discussed ad nauseum, that when sexual assault is a crime of feelings, there can be no proof, which makes it impossible for a victim to prevail. The claim is that rape and sexual assault are horribly under-reported, so the lack of prosecutions proves that it’s an epidemic and entitles proponents to manufacture estimates which must be accepted as fact. And that there are no false rape accusations, because why would a woman subject herself to the hate and contempt of being an accuser?
Some might call these arguments circular and rhetorical, but those wouldn’t be the proponents of such changes to end this epidemic. Anyone who questions, on the other hand, is assured of being called a “misogynist,” because the pre-emptive ad hominem is their best friend. It’s scared off many, who aren’t sufficiently willing to take the heat of standing up for the accused.
Whenever someone calls bullshit on laws that challenge the third wave feminist perspective on sex crimes, they invite attack as being a rape apologist, or worse still, a rapist themselves. This has nothing whatsoever to do with either apologizing for a heinous crime or promoting the crime. It has to do with defining a crime down to the point where it’s lost all touch with the basic notions of logic, notice and due process.
There are plenty of women among the ranks of criminal defense lawyers. A few have shown the fortitude to buck the pressure of neo-feminists to back their side, as have some of their male allies, who wring their hands in empathy. But most have not.
Where are you? Where is all that passion about the evisceration of the constitutional rights of defendants? Those tears you shed over the conviction of the innocent have all dried up now that your “passion” for the accused is in conflict with your “passion” for feminist ideology.
Sorry, but you can’t have it both ways, even though that’s what these laws are all about. Either laws define real crimes in real ways, or they leave them to whatever feelings the most delicate flower has after a night on the town.
The California law provides that a person cannot consent if “incapacitated due to the influence of alcohol or drugs.” It also says that it is no defense that “the accused’s belief in consent arose from the self-induced intoxication or recklessness of the accused.”
Old school feminists argued that the sexes were equal, that women could take care of themselves and didn’t need to be treated like delicate Victorian ladies, with special rules that favored and institutionalized their weaknesses and elevated their feminine feelings to the law. They weep at what’s become of their sexual revolution, when they fought for the right to be sexually aggressive without shame.
Laws like this defile their efforts, and no amount of hurt feelings makes this devolution into the Looking Glass any more rational. And any criminal defense lawyer, no matter what your gender, who is willing to forsake the accused to get a leg up in their gender politics, is a fraud.
Update: Via Rick Horowitz, this used to be a very funny video.