Opinion

Ezra Klein totally whiffed on affirmative consent

"Yes means yes" laws go way overboard in assessing the scope of colleges' sexual assault problems and in punishing suspected offenders

Liberal backers of feminists seem to be trading their long-cherished principle that the "ends don't justify the means" for the battle cry of "by any means necessary." How else to interpret the unabashed support that Ezra Klein, one of the country's smartest and most influential young liberals, recently extended to affirmative consent (or "yes means yes") laws that are proliferating across American campuses to deal with an alleged rape epidemic?

To his credit, Klein unflinchingly and rightly acknowledges that California's law constitutes a draconian assault on the due process rights of men whom it would regard as guilty until proven otherwise, vastly increasing the prospects of false convictions. (I made a similar point in a previous column here.) But then Klein goes off the rails. He declares that this "terrible law is necessary." Why? Because there is an ugly "culture of entitlement" among American men and "ugly problems don't have pretty solutions."

What's truly ugly is accepting totalitarian notions of justice to address a problem that is nowhere near as rampant as the proponents of "yes means yes" laws claim.

What's driving Klein to such extremism is a 2007 Justice Department study that one in five women experience sexual assault on campus. If this factoid (it would dignify it too much to call it a statistic) were true, it would dwarf the crime rate even in the most brutal African ethnic wars, Heather MacDonald points out. Indeed, she notes, in 2012, Newark's rate of all violent crimes — murder, rape, robbery, and aggravated assault — was 1.1 percent. (And she even wants the rape stat to be true because that would offer an excuse to return women to their chastity belts.)

So how did Justice arrive at this figure, which has become gospel through repetition in feminist circles? Via a poorly constructed study that relied on responses from a self selected — not a random — sample of students at two colleges, and deployed a rather loose definition of "assault" that included an unwanted kiss.

Klein — ironically, a champion of the hot new genre of supposedly fact-based "explanatory" journalism — swallowed this figure whole, even though it was effectively debunked by the National Crime and Victimization Survey conducted by the federal government's own Bureau of Justice Statistics last year. Widely regarded as the "gold standard" for accurately assessing crime rates even in categories like rape where a large portion go unreported, the survey found that the proportion of women subjected to rape or sexual assault fell 64 percent between 1995 and 2005, standing at a mere 1.1 per 1,000 women in 2010. What's more, 18- to 24-year-olds in college were no more likely to face rape or assault than peers who weren't in college. This isn't to minimize the terrible trauma endured by young women who have been the victims of sexual assault — it is only to place them in the proper numerical context.

And there are plenty of other indicators beyond statistics suggesting that many American women don't exactly feel like they live in a vicious rape culture. If they did, Scout Willis, Bruce Willis and Demi Moore's daughter, wouldn't have fearlessly strolled topless in Manhattan to protest Instagram's policies against nude pictures last summer. Sure, she's quasi-famous. But nonetheless, try doing that in the pre-sexual revolution America or modern-day India (my native country) without getting assaulted or worse.

Willis chose going topless as her form of protest precisely because, contrary to Klein's assertion, there is no longer a "culture of entitlement" among American men. Her stunt was possible only because social mores that used to work against women now work for them. Far from facing any sanction, she could count on those around her acknowledging — even cheering (like me) — her right to wield her sexuality as she saw fit without becoming prey to jerks who believe she's "asking for it."

But social mores can't be enforced in a bedroom. No amount of attitude adjustment can protect every woman in every private setting where all she can rely on for her personal safety is the internal moral compass and mental balance of her partner. However, if there were a big disjunction between the broader culture and the personal morality of men, women would automatically adjust their behavior — just as one automatically locks one's home in an unsafe neighborhood. They would take common sense precautions and avoid excessive drinking or sleeping with multiple partners so as to reduce the odds of running into a creep. But if the hook-up culture is pervasive on campuses, it's because they don't find the risk they take to be incommensurable with the sexual upside they expect. The very fact that such a culture exists suggests that "yes means yes" laws are a complete overreaction to a vanishing problem.

The sexual revolution gave women control over their sexual destiny by letting them conduct their sexual lives based on their own individual risk-reward assessment without being stigmatized as prudes or sluts. Its promise never was and never will be to guarantee complete safety — an impossible goal. What's more, this revolution managed to deliver its gains without sacrificing liberal norms of justice. It is implausible and dangerous to suggest that after all these gains these norms now must be trampled for further progress.

This is why it is a very welcome development that 28 current and former Harvard law faculty members mounted a counter offensive to the left's jihad on men this week. They issued a statement denouncing their university's affirmative consent policy as lacking in "the most basic elements of fairness and due process [and being] overwhelmingly stacked against the accused," and urged Harvard to throw it out, even if that meant losing federal dollars.

Throwing sons and brothers under the bus for crimes they haven't committed in a utopian quest to protect women from their lovers perverts justice, and reminds us that utopianism and totalitarianism are often two sides of the same coin.

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