With Friends Like These

A lot of people sent me a link to Judith Shulevitz’s New York Times op-ed, Regulating Sex. As any regular SJ reader knows, there is nothing in there that hasn’t been discussed here, sometimes long ago, at far greater depth. But Shulevitz is against the affirmative consent trend, which she calls a “doctrine,” so it’s all good, right?

What Shulevitz accomplishes is a very well written, easily digestible, version of the problem that serves to alert the general public, those unaware of law, the issues of gender and sexual politics, the litany of excuses that have framed the debate and the seriousness of its implications, to the existence of this deeply problematic trend.  She notes that one of its primary ALI proponents, NYU lawprof Stephen J. Schulhofer, calls the case for affirmative consent “compelling.” She neglects to note this is a meaningless word in the discussion. Still, it’s in there.

The other day, Mark Bennett and I were discussing the problem with the ACLU’s Lee Rowland taking the public lead on the issue of criminalizing revenge porn.  In the beginning, Lee was a good choice of spokesperson, as males were dismissed as misogynists while Lee’s bona fides as a feminist were well established.  When some association or law school decided to throw a debate, the proponents were willing to take the stage with Lee. Not so with someone like Bennett or me, as we were misogynists. 

Unspoken was that Lee was willing to compromise on principle, and disinclined to call out the myriad lies. Whether she was conflicted or just inclined to compromise and disinclined to hurt feelings, I can’t say, but it became increasingly clear that she was giving away far more than we would.  Or than she had any right to give away.

Interestingly, even while Lee was trying to handle the issue with a “light touch,” she was being cursed and derided by her adversaries anyway.  The difference is that she would take it, where others would not. It also served to push the debate further toward the extreme side of the anti-revenge porn advocates, as Lee wouldn’t push very hard for the other side.

As these sorts of issues filtered away from legal blawgs into the mainstream media, the usual short cuts immediately became apparent.  Reporters love people with bold-face names or titles, which relieves them of the need to explain why their quotes are worth reading. They are often unknowledgeable, sometimes ridiculously clueless, but that really isn’t the reporter’s problem. They have the credentials, if not the credibility. All they need to do is get it past the editor and they’re home free.

Bear in mind, these are invariably responsive arguments being presented to challenge the activists’ calls for change.  The activists frame their position and then the media looks around for someone to dispute it.  Depending on the quality of thought, knowledge and guts, the response can either enlighten or not, along a sliding scale.  Someone who has a firm grasp of the issues, the subject matter, the reasoning, the problems, will present a very different view from someone who has the barest grasp but is always available when a reporter calls.

But then there are also people who feel strongly enough about an issue that they want to speak out, but either lack the chops to do so (often by lack of education or experience) or whose perspective is one of compromise or conflicted beliefs.  They raise tepid arguments, give away issues that should never be given away, accept the other side’s points without adequate scrutiny or with seeming unawareness of why and how they’re wrong.

And so the public face of the argument gets framed.  And the debate is between the extreme position of the activists, and the compromised  position of the opposition, moving the center mass of the discussion far closer to the activists’ position than it should, or needs to, be.

As Bennett and I discussed some of this, he said to me, “with friends like these…”.  People who share similar views are presumed to be “allies” in the cause, and thus one speaks for others and we should all applaud and support each other because we are on the same side. Until our “allies” start giving away things that we do not support, do not concede.  We may still be on the same side of an issue, but they have cut our legs off.

This is reminiscent of the judge who interrupts the defense lawyer during cross-examination and takes over the questioning.  Judges tend to think of themselves as brilliant questioners, not because they are but because no one can tell them otherwise.  And so, they ask questions, but do so poorly or tactlessly.

Sometimes, they’re so ham-handed and clueless that they rehabilitate a witness because they have no clue where a question is going to take them. In other words, they may want to beat up a witness, yet end up botching it completely. The joke is that if the judge is going to do your cross for you, can they please do a better job of it.

So from the perspective of one who has spent a good deal of time reading and following some of these issues, knows the law and knows the arguments, the tepid and shallow public defenses against very serious issues fail to satisfy, fall short of presenting the arguments that we would present. Sometimes, they give away points that should never be given away.  And rather than applaud our allies, we cringe at their handling.

But then, Judith Shulevitz has an op-ed in the New York Times. Lee Rowland was asked to debate Mary Anne Franks at Yale. I, on the other hand, offer my views on SJ because the New York Times didn’t ask me to write an op-ed and Yale didn’t ask me to join in the debate.

10 thoughts on “With Friends Like These

  1. William Doriss

    Come on, they did you a favor. And you don’t realize it. You are not a Publicity Hound anyhow!?!

    1. SHG Post author

      But if they’re going to seek out and enjoy the publicity, at least they can do a better job of it.

  2. John

    I read posts about criticism to affirmative consent when they come up in criminal matters (not civil matters like getting fired or expelled from a university). I have read that these laws are potentially criminalizing more behavior than their supporters realize, and that would be bad, but concrete examples have not been forthcoming. It is also unclear to me how the state having to prove that the victim did not consent rather than the state having to prove the victim refused shifts burden of proof on to the defense.

    I will continue reading the articles. Perhaps one day the reasoning behind the “burden of proof” objections will become clear to me.

    1. SHG Post author

      The reason I (and, I guess, others) haven’t spent a lot of time and energy providing concrete examples is because it’s so obvious. Apparently, not to everyone. So here’s the shift:

      Accuser alleges rape because of lack of consent, saying: “He touched me without my consent.” That’s it. Case proven. Nothing more is required and, in the absence of a viable defense, the accused loses.

      Now, it’s up to the accused student to prove, by a preponderance of the evidence (which means more than 50%) that there was consent. There was consent at every point in time. There was clear and unambiguous consent. And most importantly, that the accused’s assertion of consent somehow is proven to be more credible than the accuser’s assertion of lack of consent.

      Let’s assume the accuser says “I did not consent,” and the accused says, “you did consent.” The two allegations are equally credible. The accused loses, because the accuser’s assertion is sufficient to establish the offense, and the burden then shifts to the accused, whose defense fails to suffice as being more credible than the accusation.

      Mind you, under American jurisprudence, this shifting compels the accused to prove innocence, which is something our jurisprudence would not otherwise require, merely upon the fact of an accusation, or be peremptorily “convicted.”

      Is that sufficiently concrete for you?

      1. John

        That is sufficiently concrete. It is strange that PoE is supposed to be more likely true than not true when one claim apparently outweighs an equally credible claim. Then again, I expect that kind of strangeness in civil law.

        Does the shifting burden apply to criminal law?

        1. SHG Post author

          It would be the same when applied to criminal law, where the accuser’s word (what we call testimonial evidence) would be all that’s necessary to prove lack of consent beyond a reasonable doubt, thus shifting the burden to the defendant to prove his innocence.

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  4. David M.

    Remarkable, Mr. Schulhofer. If I’m drunk and don’t say the magic word, I’ve been raped. Has Mr. Schulhofer ever been drunk?

    If I’m ‘confused,’ a daily state of existence for me, and don’t say the magic word, I’ve been raped. Oh snap. Mr. G, will you represent me?

    If I’m in a state of ‘frozen fright’… well, I’d never heard of it. And on a related note – I thought the word ‘documented’ was strangely chosen. Shouldn’t Mr. Schulhofer have gone for ‘well-documented’ if it were available?

    When I Google it, I get page after page of Scooby-Doo results. Googling ‘frozen fright syndrome’ gets me lots of ultrafeminist material, an Urban Dictionary link to a made-up sex act with a similar name, and a Royal Society of Medicine paper that briefly mentions it as an ‘extreme’ reaction to physical captivity (i.e. being taken hostage.) And the reaction in question is said to be ‘paralysis of the normal emotional reactivity’ of the subject. Odd. Mr. Schulhofer makes it sound like his hypothetical rape victim is physically incapable of saying no.

    Hmm. I wonder why Mr. Schulhofer would conflate routine sexual encounters with hostage situations, and make no mention of it? Why would he elide the bit about ’emotional’ paralysis? Aren’t NYT op-ed sources quite trustworthy, and free of bias?

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