A personal note:
The most important issue this week is the growing list of men accused of sexual assault. At first, I had no idea how to debate it. Because the main topic is so blatantly heinous, every debate I came up seemed like a stretch or a side issue, like legislation in France to combat street harassment (though that one is fascinating, more on it here).
This is my best attempt to a) actually address the central issue and b) find something genuinely worth debating. I'd love to hear your thoughts, or if you have another suggestion on this important topic. Email me: email@example.com.
You've probably also seen the New York Times' story on decades' worth of sexual harassment and secret settlements by Hollywood producer Harvey Weinstein.
Before the story broke, cultural norms were arguably already beginning to shift. Women were beginning to come forward with their stories more often in the press, and the number of reports was rising on college campuses. People seemed to be paying more attention to accusations of sexual harassment—though with mixed results. Bill Cosby, Roger Ailes, Bill O'Reilly, and Donald Trump are the most high profile examples: Cosby's accusation resulted in a mistrial, Ailes and O'Reilly were fired with payouts worth tens of millions, and Trump was elected president.
Afterward, the gates opened. The story sparked a long list of other accusations and contributed to a growing cultural awareness of the issue. Buzzfeed reported on a list that shamed men in media for sexually harassing women. Vox Media (note: where I work) fired one of its top executives for sexual harassment. MSNBC put political journalist Marc Halperin on leave because of similar allegations. The list goes on.
Why is it important?
This flood of accusations is no accident.
First, many industries are structured in specific ways that make abusive behavior possible and hidden for long periods of time. This applies to Hollywood, but also to media, politics, and tech. In each of these industries, there is a large supply of talented people eager to catch their big break. There is a limited number of ways to succeed—roles in big movies, positions of power in politics, access to funding, etc. And there is a subjective process at the gateway to success—movies are art, politics is often personality-driven, seed stage fundraising relies largely on "quality of founder." Put these things together and you create a power structure that doesn't make it difficult for people in positions of power (often men) to take advantage of people who aren't (often women).
Second, social norms are much stricter on what people can say or do than laws are. As a result, socially risky speech often goes repressed—until something causes a crack in the dam. Accusations of sexual harassment have gone underreported for generations and not without reason: a 2013 study showed 75% of employees who report workplace harassment face some form of retaliation. But with a critical mass, social norms can change surprisingly quickly. Researchers call it "unleashing."
In industries and at moments like those, what might seem like a new movement is really a structure breaking down to reveal what has been there all along.
This is one of those moments for sexual harassment. It's our responsibility to consider the question: What can we do to address this problem and prevent it from growing the first place?
One option is yes-means-yes laws. Under these rules, your partner needs say yes to your advances, as opposed to just not saying no. Currently, these laws have nothing to do with criminal liability. They are only applied to the way colleges evaluate sexual assault cases internally, most notably in the California state school system.
That said, these rules establish important standards for sexual assault in the rest of society. The rules for consent that we learn in school stick with us (or at least they should). They seep into our understanding of what is and is not sexual harassment and assault. So when women come forward with stories of, say, unwanted advances at work, we interpret that story with a definition of sexual harassment that prioritizes affirmative and enthusiastic consent.
Should we have a yes-means-yes standard for consent?
Yes-means-yes laws take a hatchet to areas where we need a scalpel. Such a sweeping yet specific definition of consent has two major effects that make it not just impractical but overtly harmful.
First, it criminalizes normal sexual activity between partners. Have you ever been cuddling with your partner, started kissing, and then moved right on into having sex? Yes-means-yes would categorize that as assault. Now, supporters of these rules would say that by definition those cases would never be brought since after all both people enthusiastically consented, whether they said so or not. Who would bring the case?
But that's clearly not good enough. A law that is defended by effectively saying "don't worry, it won't be enforced in those cases" should not be a law at all. We would never pass a law about theft that we didn't want enforced in a large number of cases.
As Cathy Young wrote in Time, "one of the partners could start feeling ambivalent about an encounter after the fact and reinterpret it as coerced — especially after repeatedly hearing the message that only a clear “yes” constitutes real consent. In essence, advocates of affirmative consent are admitting that they’re not sure what constitutes a violation; they are asking people to trust that the system won’t be abused. This is not how the rule of law works."
Second, instead of dealing with sexual harassment and assault at a societal level, these rules put pressure on colleges to set the standard for everyone—and colleges shouldn't be trying these cases in the first place.
By requiring universities to adjudicate sexual assault cases themselves, we force them to create lesser courts that by design do not live up to the expectations and requirements we have for courts of law. The process is inherently unsound and as a result is a disservice to both survivors of sexual assault and students accused of it. We would never set up a system inside a university to deal with stealing or other kinds of violence. Why would we put sexual assault in a lesser category with lesser consequences?
The real benefit of yes-means-yes rules is simple: We are redefining consent. Right now, the burden is on the person blocking advances to make it clear they do not give consent when it should be on the person seeking consent in the first place. Women are required to police their own behavior to make sure they aren't appearing to give consent ("What were you wearing?").
If you—man or woman—had to ask before you kissed someone, it would be a major change to social norms. So what? Is that more important than not sexually assaulting someone? If Harvey Weinstein scandal has accomplished anything, it is to show the status quo of sexual harassment is completely untenable.
Still think this sounds a little risky? Thinking about the loving relationships in which getting an affirmative "yes" seems stilted and strange? You're right. It's natural to point out the problems with laws like this, because we're all biased toward the status quo. But studies show "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." The status quo, maintained by the social norms we have now for consent, is simply unacceptable.
The benefits of yes-means-yes laws are most clear in an unexpected place: property law. As Ezra Klein put it, "we have a yes-means-yes standard, though we rarely call it that. The only way I can legally take something that belongs to you is if you explicitly give me permission. That’s true even if I’m just borrowing it, or even if I’m just testing to see if you’re willing to let me have it, or even if I really want it, or even if you’re too drunk to realize I took it."
"I have borrowed bikes, cars, books, headphones, and even money without asking. But I only do that when I am certain the consent would be there, and if I am wrong, well, the consequences could be severe, and I will be the one to bear them."
We need the same rules for our bodies. Who would argue that we aren't more important than a car?
- The New York Times' Jodi Kantor and Megan Twohey on Harvey Weinstein
- "Some of the former employees who said they had troubling experiences with Mr. Weinstein asked a common question: How could allegations repeating the same pattern — young women, a powerful male producer, even some of the same hotels — have accumulated for almost three decades?"
- Vox's Ezra Klein on yes-means-yes after Harvey Weinstein
- "The argument for yes-means-yes laws in sexual relations is an argument about who should bear the burden of making sure there’s consent — who should have to ask, who should have to make themselves clearly heard, who should shoulder the discomfort of an awkward question. It is based on a belief that the gray area we have now is the wrong gray area, that it asks too much of women and permits too much from men, that we gain less from this spontaneity than we lose from the prevalence of assault."
- The Short Version debate, "Should colleges adjudicate sexual assault cases?"
- Yes: "Schools must have a predictable and efficient way of doing things courts can't do to protect students and ensure they can get the education they are there to receive. For example, a school needs a system for moving a potential victim from dorm rooms next to a potential attacker, even though there may not be enough evidence to find the accused guilty in a court of law."
- No: "We don't put simple assault through an internal system, we report it to the policy. Why are we creating a separate internal system for sexual assault, as though it were a lesser crime?"