Honesty, Finally

As the fight for due process on campus rages on, fools, liars and shameless self-promoters* have been desperately trying to salvage a viable argument against the rescission of the Title IX “guidance.” They cry, what about the Clery Act? What about the Violence Against Women Reauthorization Act? Notably, none of the proponents actually offer any substance as to what these laws have to do with anything. There’s nothing there.

If you wonder why not a single one of the now-64 adverse federal decisions holding that the Title IX guidance fails to provide due process to students ever mentions these laws, it’s because these are red herrings, some peripheral language that touches on campus sexual discipline, but irrelevant to the issue. The presumed expectation is that screaming, “Oh yeah, what about the Clery Act?” is good enough to shift the burden away from facts and law. It’s a fool’s game.

Lawyers who litigate the cases won’t play it because they don’t want judges to laugh at them for being idiots. Judges don’t play it because they know the law. The only people who try so very hard to play it are fools desperately trying to deflect attention away from the deprivation of due process on campus. Yet, this appeared to be the best effort those seeking to perpetuate a system of star chambers could muster.

Where, I asked, is an honest argument in favor of the cause?  It was rumored that Ezra Klein at Vox had made one, but it took the kind efforts of Amy Alkon to dredge it up. Granted, the specific subject wasn’t the Title IX kangaroo courts, but rather a step down the road to perdition, “yes means yes.” And to his credit, Vox’s Ezra Klein told the truth.

Klein premises his contention on a now-well known false statistic, and one that has ironically been subject to so many facile variations since then that it could take hours, if one was to make the effort from a clean start, to nail it down to its source:

Every discussion of the Yes Means Yes law needs to begin with a simple number: A 2007 study by the Department of Justice found that one in five women is the victim of an attempted or completed sexual assault while in college.

One. In. Five.

That study relies on surveys of two campuses, and sexual assault is a notoriously underreported crime, so it’s possible the real number is much higher, or somewhat lower. Either way, it’s far too high — evidence that something has gone very wrong in the sexual culture.

This is the gender-war equivalent of the flavor of the month in free speech, the Naxos. The sky is falling, so law be damned. Inter arma enim silent legēs. When facing the end of times, the niceties need no longer be observed. It’s win at all costs.

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure. (Emphasis added.)

And that is the honest answer. The only honest answer. Blackstone’s Ratio, that it’s better that ten guilty men go free than one innocent man be convicted, is turned on its head. Innocent men (and women) will be prosecuted, will be punished, but it can’t be helped or a guilty person may go free. That can’t be allowed.

Klein goes for the big issue, that men “better Be Pretty Damn Sure” if they want to survive campus sexual politics. He is a well-intended optimist, assuming that if they are pretty damn sure, they will survive unscathed. Another word to describe his assumptions would be naive.

Or take another common situation: consent that may or may not have been delivered by someone who may or may not have been too drunk to deliver it. The law is plain on this point, “It shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity … due to the influence of drugs, alcohol, or medication.” If you go before the college board and say that the woman accusing you of assault simply doesn’t remember that she said yes because she was so drunk, then you’ve already lost.

But here’s the honest answer kicking in again: So what? In the scheme of the gender wars, someone is going to have to lose, and Klein has chosen men, innocent men. To achieve the goal of feminist sexual empowerment without responsibility, there is no rational path that doesn’t involve someone being sacrificed at the altar of feelings. Klein has come clean: Guys, you’ve already lost.

If this is an acceptable price to pay to indulge the feelings of females that rape culture is the end of times, just as the belief that the Naxos are harbingers of the Fourth Reich justifies the Antifa’s resort to violence to some, this justifies the systemic deprivation of due process for the accused on campus. It’s the only honest argument in favor of Title IX. That’s all there is.

*For those engaged in the industry of “consulting” with colleges on campus sexual-abuse policy, practice and litigation, this is a huge pocketbook issue. As with Scott Schneider, there is a big green horse in the race and a deep conflict between law and the perpetuation of a system that’s been their bread and butter. Some argue that changes are wrong. Some split the baby. Some just spin their hardest with empty and irrelevant vagaries.

22 thoughts on “Honesty, Finally

  1. Dan

    “Every discussion of the Yes Means Yes law needs to begin with a simple number: ”

    …and since that simple number has been repeatedly, and conclusively, shown to be false, in that it’s overstated by orders of magnitude, the rest of his “argument” goes away. Or, rather, it would if it had anything to do with facts and logic.

  2. Laches

    Klein was at least honest initially. He wrote a response to the criticism he got for that piece titled “What people get wrong about the Yes Means Yes law” (not posting a link out of respect for the house rules) in which he tried to weasel out of his admission that he was willing to sacrifice innocent men for the cause.

    He starts with this, and it devolves from there into gibberish about how ‘ambiguous’ is not the same as ‘innocent’.

    ‘Jon Chait writes that I am “arguing for false convictions as a conscious strategy in order to strike fear into the innocent.” That is, seriously, among the most insane things I’ve ever seen someone read into my writing.’

        1. SHG Post author

          Marcotte doesn’t like me. I think it’s because of my gender. And Ezra never calls or writes, not even on my birthday.

  3. Jim Majkowski

    I recognize Klein’s argument from Paths of Glory , except, of course, in Douglas’s and Kubrick’s film, the poilus chosen as examples por encourager les autres suffered a direr fate than expulsion and blacklisting.

  4. Elpey P.

    How long before Mutually Assured Destruction becomes a hookup tactic?

    “And remember, son, never have unprotected sex. Always get yourself drunk first.”

    1. Nemo

      I expect that advice is insufficient, since being drunk oneself is undoubtedly no defense against accusations. In view of that, the advice must also include “and be certain to file your complaint first, to ensure your victimhood before she can establish hers”. I’m not even sure if that’s cynicism or realism anymore.

      It’s enough to make me wonder, though, what would happen if college cis-males were to begin using the rules of victimhood and Title IX “investigations” in this way en masse, accusing their drunken hook-up non-cis-male* partners of assault as a preemptive defense against getting accused themselves. I expect that the anti-rape-culture mob would lose their collective minds. Title IX investigations aren’t supposed to be applied to non-cis-males in the same way, after all.

      Far too many these days fail to grasp that once their good guys (uh-oh, I said it) establish something as valid, their bad guys get to play by those rules, too. Those who applauded Obama legislating with a pen and a phone are now horrified that Trump’s doing the same thing. Or at least trying to, in his bumbling fashion.

      * I recently came across a new thing on Teh Facebookz, in which people are saying that “female” is as offensive as “girls”, etc., because reasons. I don’t know that it will become a thing, but the notion seduced an otherwise sane, intelligent friend of mine. Their gender has to go unmentioned, though, since all the applicable terminology is now terminally offensive to them. Oi.

      1. SHG Post author

        I suspect his advice wasn’t intended as actual advice, though a cocktail at the end of a long day is often pleasant.

        1. Nemo

          I took the “advice” as relevant to the mutually assured destruction tactic which preceded it, so for MAD, first strike capability is critical. Another understood condition of MAD is that defense is impossible. Thing is, under the current Title IX, the retaliatory strike isn’t an option, so striking first is the only defense, not so?

          Of course, if understanding and tolerance ruled the day, things would be better, but where’s the fun for the activists in that?

          1. SHG Post author

            This is what you can’t do. His comment was a joke. You made the mistake of trying to seriously discuss the “advice” of a joke (then doubled down here), except you’re wrong. No, this does not mean we now engage in a discussion of the stupid shit that popped into your head. Just because stupid shit pops into your head neither makes it worthy of discussions. But instead of letting it go, you persist with your stupid shit. Remember the rule, don’t make people stupider. Or, if you must, go to reddit.

      2. Sacho

        Your suppositions are based on the naive notion that feminism is a movement for equality. If you start with the axiom that feminism is about female supremacy, then it should be obvious that feminists(who may be crazy, but not stupid) have thought of this eventuality and guarded against it.

        The actual effect of your hypothetical will be that the men will be laughed off and ridiculed. Academics will argue that men being raped is a ridiculous notion, because they have all the power of patriarchy behind them. They will present theories that “being made to penetrate” isn’t really rape, and that men are the presumed rapist in a sexual encounter, just like the Duluth model argues that men are the presumed aggressor in a domestic violence case.

        The power of the “Dear colleague” letters isn’t the Title IX threats; it simply gives administrators, who are already feminist recruits, the excuse to prosecute males for their crimes against feminism. To force them to apply the guidelines evenly is much harder, because you have to go through the actual legal system, not the kangaroo courts of university administrations(see the long list of males alleging Title IX discrimination and coming up empty in courts, because it’s difficult to prove – ironic, given the complaints about rape).

        “Hit them back with their own weapons” relies on some sort of equality between the genders, which doesn’t exist. Considering all the posts Scott makes about prejudice within the justice system, why would you think that administrators, who already proudly wear their feminism badges, would not be prejudiced in handling the cases in front of them?

        1. SHG Post author

          The thing about someone leaving a stupid or off-topic comment is that someone else will feel the need to explain why they’re wrong.

          1. Elpey P.

            I told mother her advice was just causing problems, and she mumbled something about “waivers” and “provisional filings,” then went to make me a meatloaf sandwich.

  5. PseudonymousKid

    Dear Papa,

    Well Mom always said boys are made of snips and snails and puppy dog tails, so Klein maybe has a point. Or maybe he’s just one step away from throwing a tantrum.


    1. SHG Post author

      You were always an erect child. We could never let you get your hands on the Victoria Secrets catalogue or Mom would have to wash your sheets daily.

  6. B. McLeod

    It is the very accomplishment of having implemented this abomination based on nothing that keeps its proponents pressing to maintain it based on nothing.

    1. SHG Post author

      Frankly, it’s a hell of an accomplishment. They played the long game and made it happen. Wrong as it may be, it’s an impressive accomplishment.

  7. James L. Smith

    In the 50’s we sang this song led by the female teacher during my first several years in grammar school. Some of the teachers were angry old spinsters. Boys were made of “snakes and snails and puppy dog tails,” girls of “sugar and spice and everything nice.”

    And on the subject of stare-rapes, how is this for rape by this woman nattering with Anonymous News Network (ANN) on its FB page for quoting Oscar Wilde and the word “mankind” to describe all of humanity: “You demonstrate emotional rape-denial of our feminine existence,” she squawked. [Ed. Note: Link deleted per rules.]
    Thanks for the nostalgia.

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