The New Sexual Revolution (Update)

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the notion of affirmative consent (and, lest this detail be missed, on-going affirmative consent, since consent can be withdrawn at any moment converting consensual sex to rape) an impossible minefield to navigate.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.

23 thoughts on “The New Sexual Revolution (Update)

  1. Jake DiMare

    I say bring on the 24/7 surveillance state. Life will be much simpler when we can roll back the tape on any moment in time. Desperate drug addicts, young ladies with morning after remorse, misbehaving prosecutors, trigger happy cops, and drunken frat boys will all start thinking twice about their antics…

    1. SHG Post author

      Weird how the relative balance of freedom, equality and security shifts given whose ox is being gored at any given moment.

  2. Fubar

    SHG, quoting Hans Bader, quoting The Fresno Bee:

    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.

    With one legislative stroke, they’re wrecking the common law parol evidence rule, and thwarting my innovative legal entrepreneurial gambit to end the campus plague.

    My fashionable line of Molly Bloom Declaration Cards™ were designed to appeal to collegiate English majors. They feature a tastefully embossed signature line, to be completed by the bearer before proffering the card as an offer to make a unilateral contract. Now I must consign them to the recycling bin, and yes I said yes I will Yes.

    1. Patrick Maupin

      If you really want to appeal to English majors, pick those cards up out of the trash, wipe them off, and pretend like you already knew that “verbal” and “oral” mean two different things (or that you knew that the Fresno Bee’s reporting is not highly accurate, whichever).

      Me? I’m going to open a chain of all-night Notary Publics, right next to all the nightlife hotspots. I should probably get a lawyer to check out the disclaimer on the pre-printed forms, just so Scott doesn’t give me any grief.

      Now excuse me while I go perform a “survey” of the “literature” so I know all the different tick-boxes I have to put on the forms…

    1. SHG Post author

      You are a hater and a misogynist. Plus you dress funny. We don’t need no stinkin’ evidence. We say so, and that’s good enough for us.

    2. John Neff

      The colleges are now required to notify students and staff of an alleged sexual assault. Other than that nothing has changed.

  3. Max Kennerly

    Hyperbole about “the evisceration of the constitutional rights” and “the conviction of the innocent” loses its sting when you realize the bill has nothing to do with the criminal justice system. It’s about disciplinary actions at universities, where preponderance is the norm for all types of allegations, except sexual assault, where suddenly the standard needs to be at or above the criminal prosecution standard because sex is supposed to be free of consequences for men.

    But, hey, if there’s anyone on a college campus who needs special protection, it’s men who prey on intoxicated women. Can you imagine a world in which men are supposed to look for consent to sex, as compared to looking for only the absence of resistance?

    1. SHG Post author

      If you didn’t exist, Max, I might have to invent you as a foil for rational thought when Cox isn’t around. But nobody would believe me.

      1. Patrick Maupin

        What do you mean, “if” and “might?” For added realism, you might consider waiting more than 6 minutes before responding to your alter-ego.

    2. Lurker

      There is a clear need for a disciplinary process in universities, but all forms of violence should be out of its scope. We are talking about serious crimes here.

      If a rape allegation is raised, the only thing university should do is calling the police. The police has expertise and means to investigate the crime and bring it to prosecution. The university does not. And disciplinary measures are either too much or too little. Either there is a crime and someone should go to prison for an extended time or there has been no crime and there is no need for punishment, either.

  4. Magdalene

    INAL but looking for clarification:
    what difference would it make if it was the boy who woke up with regrets and then cried rape?

    The same legal processes would play out with the girl carrying an assumption of guilt?

    It’s not ridiculous to think it could happen

  5. John Barleycorn

    The [(tangles – knots) + (fankles – binds) X (impasses / disjunctions)] whirligogs morning after proof being equated with force and duress on California and other campuses across the nation?


    I am tempted to suggest that University Administrative Policy Committees and the sponsors of SB967 should start reading R.D. Laing while on LSD but I probably shouldn’t, so I won’t.

  6. ShelbyC

    I wonder how this will wash when somebody confronted after an encounter with a cute young woman, responds to his wife or GF, “Well you see hon, I didn’t give continuing affirmative verbal consent at each step, so really I’m the victim here…”

    1. Wheeze The People™

      “In my defense, she offered her honor so I honored her offer, then all of the night I was on her and off her, your honor” . . .

  7. LTMG

    Deaf-mute people on campus will be at risk of blind retribution because they cannot affirmatively say Yes. Similar to the poorly considered law in New York banning firearm magazines above a certain capacity which made criminals of thousands of law enforcement officers. Oops! Idiots all.

  8. AlphaCentauri

    Explicit affirmative consent before sexual intercourse? Like saying, “I do?”

    The more things change, the more they remain the same.

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