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When a culture produces this much sexual assault, it’s not an accident

This isn't just about Harvey Weinstein or Donald Trump.

Opening Ceremony And 'Lion' Premiere - 12th Zurich Film Festival Alexander Koerner/Getty Images

“Harvey Weinstein is now a big problem for Democrats,” wrote CNN’s Chris Cillizza. “The Democrats cannot ignore their Harvey Weinstein problem,” wrote the Week’s Ed Morrissey. “Yes, Hillary — and the Democrats — Do Have a Harvey Weinstein Problem,” wrote the Daily Beast’s Keli Goff.

Headlines like these were inescapable in the days after the Weinstein scandal broke. They are not wrong so much as they are incomplete. More than a dozen women have accused Donald Trump of sexual assault, telling stories that often mirror the stories told about Weinstein. Trump, of course, received advice and debate prep from the late Roger Ailes after Ailes left Fox News over a series of sexual harassment allegations.

Speaking of Fox News, over the weekend, the New York Times reported that Bill O’Reilly was still at the channel, after he settled a sexual harassment accusation for $32 million — in total, he’s now known to have settled about $45 million in sexual harassment accusations. Fox News signed him to a lucrative contract after that payout happened.

So perhaps it’s really Republicans who have a Donald Trump problem, or a Fox News problem — after all, Fox News and Donald Trump have had more influence over the GOP than Weinstein ever had over the Democrats.

But let’s stop hiding behind these sorts of headlines. It’s America that has the problem. Pick an industry and you’ll hear stories. Journalism is being rocked by an anonymous list of men who are said to abuse and harass women; BuzzFeed is investigating a number of its senior employees; and Vox’s parent company, Vox Media, fired its editorial director after an investigation revealed misconduct. In Hollywood, there are now 38 women accusing director James Toback of sexual harassment. Rumors of sexual assault have spilled into the open about comedian Louis CK, actor Ben Affleck, and others.

Last week, the hashtag #MeToo took over social media. Virtually every woman I follow, on every social platform, no matter the industry or walk of life they came from, shared stories of harassment, abuse, and worse. I read searing tales from reporters and techies, chefs and yogis, civil servants and mountain climbers.

There is a pervasiveness to sexual assault in America that defies the word “problem.” When a system creates an outcome this consistently, this predictably, in this many different spaces, you have to at least consider the possibility that the outcome is intended, that the system is working as designed.

Perhaps we need to do more than try to root out the worst abusers. Perhaps we need to rethink our sexual culture too.

Should yes, and only yes, mean yes?

In theory, existing laws, and existing HR departments, should be capable of handling the worst sexual predators. But our worst sexual predators reflect a sexual culture that is already tilted far against women, where even in the absence of professional power dynamics, the burden of establishing consent is on the person resisting, not the one aggressing.

There are efforts to change this culture through both law and regulation. One of the more controversial articles I’ve written is a defense of affirmative consent laws. These laws try to impose a “yes means yes” standard on sexual relations. Did she consent to being kissed? To being touched? To being penetrated? Was she capable of consent — sober enough, conscious enough? If not, then it can be claimed as assault.

This is, for many, an absurdity to contemplate. Sex is too powerful, too primal, too uncertain to be chained to legalistic consent rules. What if she’s your wife? What if he’s your longtime boyfriend? What if you’re both so turned on that you can barely think, can barely talk, but everyone’s every movement is a yes unto itself?

But take a complex area of human relations that we really do take seriously: property rights. Here, too, 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.

In practice, of course, goods are exchanged all the time without official consent. I borrow pens from my colleagues without asking, and I act with impunity around my best friend’s fridge. 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.

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.

Our current sexual culture rewards men for aggression, for testing boundaries, for making an unexpected and maybe even unwanted move. Assault flourishes in this environment. “I just didn’t realize how to go about something, what even asking consent was,” this man told the woman he assaulted in a powerful interview. “I thought someone just went along with it, and it just happened.”

It is not hard to see how the men who prosper in that culture might ultimately become predators within it, particularly when they become powerful, famous, and protected. “When you’re a star, they let you do it,” Trump said.

But that’s changing, or at least it seems to be. As women come forward more and more often, as lists of toxic men circulate via anonymous email networks (as is currently happening in journalism), as HR departments begin to enforce the rules they say they have, aggressors will begin to face consequences. That will mean men lose the jobs they have or are quietly blackballed from jobs they want; it will mean they develop a reputation they never wanted or face legal consequences. This status quo — with its particular ambiguities and gray areas — isn’t going to work for men either.

Perhaps yes-means-yes is the wrong solution. There may be better standards, smarter approaches, more humane reforms. But something must be done, and it needs to be bigger than a few scapegoats.

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