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.
Defenders of the bill argue that the lovers have nothing to worry about; the assault will never be punished, because no complaint will ever be brought. Technically, that's true. But this is as much indictment as defense: 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.
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.
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. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.
The Yes Means Yes law could also be called the You Better Be Pretty Damn Sure law. You Better Be Pretty Damn Sure she said yes. You Better Be Pretty Damn Sure she meant to say yes, and wasn't consenting because she was scared, or high, or too tired of fighting. If you're one half of a loving, committed relationship, then you probably can Be Pretty Damn Sure. If you're not, then you better fucking ask.
A version of the You Better Be Pretty Damn Sure law is already in effect at college campuses. It just sits as an impossible burden on women, who need to Be Pretty Damn Sure that the guy who was so nice to them at the party isn't going to turn into a rapist if they let him into their dorm room — and that's not something anyone can be sure about. It's easier to get someone's consent than it is to peer into their soul. As my colleague Amanda Taub writes:
The law didn't come out of nowhere. It emerged as a response to a status quo that has proved to be an all-too-powerful tool for sexual predators, because it enables them to claim to see consent in everything except continuous, unequivocal rejection. That status quo puts women in the position of having to constantly police their own behavior to make sure that they are not giving the appearance of passive consent ... That burden isn't just annoying for women. It's dangerous. By exempting sexual aggressors from the responsibility of figuring out whether their partners are "eager and ready to sleep with them," we're asking their targets to either give in to sexual activity they don't want, or to run the risk that a firm, assertive, continued rejection will end in violence.
The Yes Means Yes law is trying to change a culture of sexual entitlement. That culture of sexual entitlement is built on fear; fear that the word "no" will lead to violence, or that the complaint you bring to the authorities will be be ignored, or that the hearing will become a venue for your humiliation, as the man who assaulted you details all the ways you were asking for it. "No Means No" has created a world where women are afraid. To work, "Yes Means Yes" needs to create a world where men are afraid.
For that reason, the law is only worth the paper it's written on if some of the critics' fears come true. 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.
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.
Then there's the true nightmare scenario: completely false accusations of rape by someone who did offer consent, but now wants to take it back. I don't want to say these kinds of false accusations never happen, because they do happen, and they're awful. But they happen very, very rarely. Sexual assault on college campuses, by contrast, happens constantly. This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat.
Colleges have settled into an equilibrium where too little counts as sexual assault, where the ambiguity of consent gives rapists loopholes in which to hide, and forces women to spend their lives afraid. The Yes Means Yes laws creates an equilibrium where too much counts as sexual assault. Bad as it is, that's a necessary change. A culture where one-in-five women is assaulted isn't going to be dislodged with a gentle nudge. A culture where a frat thinks its funny to throw a party with signs that say "No means yes, yes means anal" won't fall without a fight. Ugly problems don't always have pretty solutions.