What People Get Wrong About The Yes Means Yes Law

October 16, 2014

By Ezra Klein at Vox.com

When I first looked at California’s Yes Means Yes law, I thought it was ridiculous. The law redefines consent such that the everyday actions of loving couples would technically be unprosecuted assault. Meanwhile it did nothing to resolve the core problem in college sexual assault cases: one party says there was consent, the other party says there wasn’t, and there’s no clear way to settle the dispute. My intention, initially, was to write a column ripping into it.

So I’m sympathetic to the case against Yes Means Yes. But as I read more about the bill, talked to more lawyers about it, talked to more of the women in my life about it, and particularly after I read Amanda Taub’s piece outlining the broader benefits for an affirmative consent culture, I changed my mind. In part, I initially misunderstood what the Yes Means Yes law does, and doesn’t, do. But I also approached the law with too much status quo bias. It was too easy for me to see the disruptions and dangers embedded in the change and too hard for me to see the rolling catastrophe of the status quo.

There’s been a lot of response to my piece, some of which raises good points, and some of which seems very confused about what the Yes Means Yes law actually does (our explainer on it, by the way, is here). I think it’s worth addressing some of these issues at length, as they’re important:

How many women are sexually assaulted in college?

At the Washington Examiner, Ashe Schow says that I’m basing my case on “a myth.” In the piece, I mention the Campus Sexual Assault Study, which was released through the Justice Department and found one-in-five women report a completed or attempted sexual assault while in college. As I wrote, “the 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.”

Schow emphasizes that the survey relies on two campuses, notes that the response rate was low (which is often a problem with sexual assault surveys) and goes on to say the study has been “debunked” by the Washington Post’s Glenn Kessler. That last part is not actually true. I linked to Kessler’s piece in my column, as I think it does a good job laying out both the findings and the limitations of the study. But Kessler doesn’t debunk the survey, or even anything close. I’ll quote him quoting the National Institute of Justice in his conclusion:

Regardless of which studies are most accurate, the often-quoted statistic that one in four American college women will be raped during her college years is not supported by the scientific evidence. Nonetheless, several studies indicate that a substantial proportion of female students – between 18 and 20 percent – experience rape or some other form of sexual assault during their college years.

Kessler also makes clear that there’s reason to believe sexual violence is systematically underreported.

These studies of women attending college are not outliers. They don’t tell us something about sexual assault at colleges that looks radically different than what we see nationally. The National Violence Against Women Survey, which uses a massive panel of more than 9,000 women and 7,000 men, found that in 2010, “Nearly 1 in 5 women (18.3%) and 1 in 71 men (1.4%) in the United States have been raped at some time in their lives, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration.” That number has remained roughly the same in recent decades: a 1995 version of the survey found 17.6 percent of women reporting that they had been raped.

And, again, we have good reason to believe the real number here is higher, as people often don’t want to tell a random stranger about their most traumatic, humiliating moments.

I don’t think you can look at these numbers and say that there’s not a terrible problem here.

Yes Means Yes and due process

The idea of “due process” kept coming up in replies. Jonathan Chait, for instance, worries that colleges are “trampling due process,” and links to this Judith Shulevitz piece, which is about the lack of procedural due process in the way some colleges handle sexual assault cases, not the Yes Means Yes law. One charming e-mailer wrote, “No due process? Really? I’m a lawyer and now you’re on my hit list.” This is either a deep misunderstanding of the Yes Means Yes law, of how colleges enforce their rules, or both.

The Yes Means Yes law just doesn’t have much to do with procedural due process. Due process guarantees certain rights around most legal proceedings, like the right to a public trial and an impartial jury. But the Yes Means Yes law isn’t about legal proceedings. It’s about college hearings. And even there, it doesn’t have much new to say, one way or the other, on how those hearings should be conducted.

But there’s a real issue here, and it goes far beyond Yes Means Yes, and into a harder question: what process should colleges uses for sexual harassment hearings? College hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do. This is, for the record, something the courts have looked at: there were some very basic due process protections laid down in Goss v. Lopez, but, since then, courts have judged whether a student’s rights were violated on a case-by-case basis, and they have notably refused to say that all universities, or even all public universities, need to give students the full due process rights that the criminal or civil systems offer. This is why, for instance, students aren’t guaranteed legal representation in plagiarism hearings.

There’s a related, and serious, concern here that the process by which colleges manage sexual assault cases is a mess. In many cases, the accused lack very basic protections (the Harvard Law School’s faculty just published an open letter condemning Harvard’s new sexual assault policies on these grounds). The Yes Means Yes law interacts with these processes a bit, but mostly by telling colleges to clarify them, which will, in many cases, be an improvement.

What it doesn’t do is somehow rip rights away from the accused. You could have a hearing process that is very similar to the process used in civil trials within the context of the Yes Means Yes law, complete with guaranteed legal representation. There’s no contradiction between a fair and clear process, real protections for the accused, and an affirmative consent standard — and there’s no reason one shouldn’t support all of them simultaneously, as I do.

A somewhat separate issues that the Yes Means Yes law also directs California colleges to use the “preponderance of evidence” standard, which is what’s used in most civil trials. But that’s not much of a change: the federal government has directed colleges to use that standard back in 2011, though not all of them have complied.

The preponderance of evidence standard is a lower standard than is used in criminal trials. But as the federal government argued in 2011, it’s the standard that the Supreme Court laid down for civil discrimination suits under the Civil Rights Act, and it’s the standard the Office of Civil Rights uses when looking into Title IX violations.

The reason the criminal standard is so tough to meet is that people go to jail in criminal trials, they get the death penalty in them, they become registered sex offenders through them. The worst a college can do is expel you. That’s why colleges have never had to meet the criminal standard when deciding whether to expel a student for plagiarism or vandalism — and yet people don’t seem overly exercised about those verdicts. Why is sexual assault different, given that the punishment is the same? Are you sure you want make it impossible for colleges to expel potential rapists where the preponderance of evidence shows them to be responsible for repeated sexual assaults, but it can’t quite be proven beyond a reasonable doubt? That’s not a standard, for instance, that we think employers should meet.

The most serious argument around due process here isn’t about the Yes Means Yes law at all; it’s that colleges aren’t an appropriate venue for sexual harassment cases. Unlike in criminal trials, colleges can’t subpoena records, and they often allow forms of evidence actual courts would dismiss. “Those accused in campus tribunals are generally denied these protections — but nevertheless are subject to life-changing sanctions, based on little more than a hunch by campus court participants that one person’s story is slightly more credible,” Joseph Cohn, legislative and policy director for the Foundation for Individual Rights in Education, told CNN. More broadly, colleges are in an odd position: they both have to manage the investigation and the trial, while the legal system has clearer separation between these functions.

But this, again, leaves us in an odd place. Colleges can expel students for sexual assault, much as they can for plagiarism, or fighting, or vandalism, or repeatedly hotboxing their dorm room. No one is saying that those infractions should be solely the province of the legal system. The question then becomes, why should colleges be able to punish all these activities with expulsion, but not sexual assault? What’s the argument for letting colleges punish fights but telling them they can’t punish rapes?

No, of course innocent people shouldn’t be convicted of sexual assault

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.

But I think I understand where Chait got that, so let me try and explain this more carefully. In the part of my piece Chait quotes, I say that for a consent culture to be established, college boards will have to “convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations,” and that the stories of those convictions, which will often feel deeply unfair to accused and even sound unjust when described by the accused, will have to become broadly known to parents and college students. But I think Chait and I have very different definitions of ambiguous.

He seems, worryingly, to equate “ambiguous” with “innocent.” But imagine a party where the man and the woman go home together, and they’re both pretty drunk. They’re making out, and the man wants to go further. She says, “I’m not sure I want to do that,” but she doesn’t quite say no. He’s persistent, though. Not forceful, but persistent. Five minutes later he tries again. Again, she says something that’s not quite “stop!”, or maybe she says nothing and simply moves his hand away. And five minutes after that, he tries yet again. Eventually, she shuts downs somewhat, lets him do what he wants. What happened here?

It’s perfectly possible that the guy thinks nothing happened. She was a bit reluctant, and he persuaded her with his incredibly hot sex moves. Or maybe he thinks she wasn’t reluctant, and she was just saying no to show she’s not that kind of girl, and he did exactly what she wanted. In either case, he probably believes that she gave him implicit consent when she let him go forward. He’s a nice guy. He would never, ever assault a woman.

But to her, it might look entirely different. She was exhausted, and drunk, and maybe far from home. She was in a room with a man who outweighed her by 70 pounds and was insistent on going further than she was comfortable with. She tried to warn him off twice and he still kept pushing. Maybe she was feeling too drunk to fight. Maybe she read his tone as threatening. Maybe she thought that if she said “no,” the situation would turn violent. Maybe, sometime around his third pass at something she didn’t want to do, she stopped thinking he was a nice guy, and began thinking he was a dangerous guy.

These stories are both credible. They might even both be true. When the guy relates the story here to his family, to his frat brothers, he’s not going to sound like a rapist, because he didn’t think he was trying to assault her, and she never actually said no. He just thought this is how sex happens — it takes some convincing. But the point of affirmative consent laws is to deal with this situation: to make certain that a “yes” is actually offered somewhere along the way. This isn’t, by any means, a call for convicting innocent people; it’s a call to recognize that ambiguity isn’t the same as innocence, even if the aggressor didn’t think they were assaulting anyone. It’s a call, in other words, for an affirmative consent standard.

To get to a point where men want to hear that “yes” too, to get to the point where they buy into consent culture, some of these cases where a guy really didn’t believe he was assaulting a woman are going to have to be ruled as nonconsensual because explicit consent was never given. These are cases, again, where the women strongly believes she never consented, and was in fact intimidated, into sex. These are ambiguous situations, not false accusations. But the point here is to create a standard that gives both sides reasons to clear up ambiguity. That’s how this changes. That’s how dads begin telling their sons, and frat boys begins telling their brothers, to make sure they heard the word “yes.” That’s what an affirmative consent law means.

There’s a reasonable analogy here to STDs: people practice safe sex because they know that people like them can get STDs or get accidentally pregnant. They know that because it’s happened. They don’t feel safe just because they’re a good person, or they choose good partners, or they eat a diet heavy in fruits and vegetables. For a consent culture to take over, something similar needs to happen: people need to believe — really, deeply believe — that they can misread someone’s sexual signals, and if that happens, the consequences can be severe. No one likes condoms, just as no one particularly wants to interrupt a hot sexual encounter to take a quick survey. But the alternative is worse.

It shouldn’t need to be said, but of course no one wants innocent men or women to punished for sexual assaults that they didn’t commit. Something I tried to be clear on in the original piece is that false accusations, while relatively rare, do happen, and they’re a horror. But by the same token, rape happens all the time, and it too is a horror. The question isn’t whether it’s terrible for innocent people to be victimized. The question on the table is which you’re more comfortable with: Asking sexual partners to be damn sure the other person has consented? Or the current world where people often assume they have consent when they don’t, and there’s no clear standard?

Consent culture is about a lot more than preventing rape

More than anything, what changed my mind on Yes Means Yes was this article by Amanda Taub, and some subsequent conversations with women in my life.

Going into this, I was thinking about Yes Means Yes primarily in terms of campus sexual assault trials. And there’s a lot there that they can’t possibly fix — in particular, they don’t create a way to resolve the he-said/she-said situations that lie at the heart of the toughest assault cases. The Yes Means Yes law can’t tell you if someone is lying.

Taub’s piece really isn’t about that, though. It’s about the burden a culture of ambiguous consent places on women to always and everywhere be policing their behavior to make sure they’re not somehow giving men “the wrong impression.” This is a problem built of ambiguity, not lies. And the consequences here go far beyond sexual assault. Taub writes:

When our society treats consent as “everything other than sustained, active, uninterrupted resistance,” that misclassifies a whole range of behavior as sexually inviting. That, in turn, pressures women to avoid such behavior in order to protect themselves from assault.

As a result, certain opportunities are left unavailable to women, while still others are subject to expensive safety precautions, such as not traveling for professional networking unless you can afford your own hotel room. It amounts, essentially, to a tax that is levied exclusively on women. And it sucks.

Every woman I spoke to talked about this tax in the same way: as utterly constant, completely unrelenting. It’s so pervasive that it often goes unmentioned, like gravity. But it colors everything. What you wear. Who you have lunch with. When you can hug a friend. Whether you can invite someone back to your house. How you speak in meetings. Whether you can ask male colleagues out for a drink to talk about work. How long you can chat with someone at a party. Whether you can go on a date without having a friend who knows to be ready for a call in case things go wrong. Whether you can accept seemingly professional invitations from older men in your field. Whether you can say yes when someone wants to pick up the tab for drinks. For men, this is like ultraviolet light: it’s everywhere, but we can’t see it.

The consent tax is, I’m convinced, a vastly larger problem than we give it credit for. It’s something genuinely horrible that men have done to women, and its costs can’t be fully measured by simply tallying sexual assault statistics. To try to change this culture — to put the burden on both sexes to get affirmative consent for what they want, rather than putting the burden on women to protect themselves from men — is going to be very, very difficult, because so much of it is so deeply woven into everyday interactions.

But you have to start somewhere. And the Yes Means Yes law is a good start. Perhaps there are better ones. It would be interesting to hear some of the folks who are focused on the problems with Yes Means Yes propose some solutions for the problems that it’s trying to solve.

Corrections: There were two sloppy copy mistakes in this piece. First, an initial version of the piece used “substantive due process” rather than, as intended, “procedural due process”. Also, in the section explaining why civil and college courts don’t use the tougher, “beyond a reasonable doubt” evidentiary standard used in criminal cases, I accidentally wrote that “preponderance of evidence is a higher standard” when I meant lower. That’s been corrected, and the rest of the section remains accurate on that point.

Cases: California: Affirmative Consent Bill Threatens Student Due Process