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Sometimes, you don’t even have to scratch a liberal in order to find their inner totalitarian. Ezra Klein wants the world to know just how much contempt he has for the rule of law in his most recent piece on California’s new affirmative consent law.
For several paragraphs, Klein insures the reader fully understands that he enters his support for capricious and non-uniform regulation of sex with his eyes wide open to the consequences.
SB 697, California’s “Yes Means Yes” law, is a terrible bill. But it’s a necessary one.
It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.
If you haven’t followed SB 697, its title will give you a fair understanding of the underlying concept: Yes Means Yes. On college campuses in the state of California, if a woman doesn’t say the words “Yes I want to have sex with you now” or something similar, you’ve raped her.
Critics point out that this redefines rape to include nearly all sexual encounters that have ever taken place. Klein acknowledges this fact.
… if the best that can be said about the law is that its definition of consent will rarely be enforced, then the definition should be rethought. It is dangerous for the government to set rules it doesn’t expect will be followed.
But I’ve come to think that this view — which was, initially, my view — misses the point (this piece, in particular, did a lot to change my mind). The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.
What follows is Klein parroting bogus rape statistics which others have done the yeoman’s work of debunking elsewhere. What fascinates me about the piece is not Klein’s opinions on the topic of sexual assault on college campuses, but the ease with which he throws down the concepts of equality before the law, evidence and due process, in service to his desired outcome. In his own words:
If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent…
…To work, “Yes Means Yes” needs to create a world where men are afraid.
Fear is an underrated tool for motivating right behavior. The key however, is to insure that rules are consistently and uniformly applied. Laws must be structured so that an honest man can follow them in order for them to be useful. Klein concedes that California’s Yes Means Yes law will punish the innocent alongside the guilty because of the capricious nature of how it will be applied.
Under the new law, the exact same situation occurring between two separate couples can be treated differently. Male A and Male B both fail to get affirmative consent while the targets of their respective affections are dragging them to the bedroom. Female A awakes to the harsh light of day with no regrets, and Male A is safe. Female B awakes with a limited memory of the night and much regret, rendering Male B a rapist.
According to Klein, this isn’t a bug of the law, it’s a feature.
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.
Notice also that Klein is not merely accepting an increased number of punished innocents, but is instead advocating punishing the innocent as a tool for striking fear into all men.
School administrators will have unprecedented power over the future of young men. Will they rely on eyewitness testimony and physical evidence, such as a text message from the accuser stating “I am going to have sex now” to help them determine the truth? History says no.
The methods of divination these kangaroo courts may employ will vary. If I might make some recommendations, goat entrails are always a favorite, though a cleaner option involves testing to see whether the accused floats. Both methods will strike significant fear into the hearts of innocent men.
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.
And what if the accused was too drunk to have known that their partner was too drunk to consent? Alcohol is a magical beverage in the liberal imagination, which affects the faculties and decision making of women, but not men. Equality before the law be damned.
The entire tone of Klein’s piece is bizarre. He gives concepts such as the rule of law a nod in acknowledgement of their virtue, before declaring them useless to solving the problem he lays out. His willingness to let administrators do what they think is right, by way of passing ambiguous laws which give them the power to selectively target anyone of their choosing is both telling and frightening.
Klein believes those in power need broad discretion to do what they feel is right, and to not be constrained by rigid laws and burdens of proof. Power is, to his mind, only dangerous when the wrong people are wielding it.
In this piece, Klein gives us a glance at his inner totalitarian, and it is ugly to behold.