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Campus Kangaroo Courts
“Yes Means Yes” Continues to Gain Ground

The “Yes Means Yes” sexual consent standard, which requires that a person receive ongoing, affirmative consent throughout every phase of every sexual encounter, is gaining momentum. Both the California and New York state legislatures have required that all colleges in their jurisdiction use this standard when adjudicating sexual assault (meaning, technically, that a woman who reaches out to hold her boyfriend’s hand on the quad, without asking permission, is guilty of misconduct, even if the standard would not be applied in that case). Now it looks like one of the most well-respected legal organizations in the country may endorse “Yes Means Yes.” The Chronicle of Higher Education reports:

The American Law Institute, a scholarly group influential in legal circles, is beginning to craft guidelines on campus sexual assault that will seek to outline best practices and bring some clarity to the tangles of compliance with federal law. […]

[Stephen Schulhofer, a law professor at NYU and leading member of the committee] wasn’t intending to recommend an affirmative-consent benchmark for criminal law. But he said it was worth considering something close to it for a college setting. “I think it’s better to have both parties understand that you don’t take the next step unless you’re sure that it’s welcome,” he said.

The ALI doesn’t have the authority to compel campuses to adopt this standard. But if it endorses “Yes Means Yes,” we can likely expect even more universities and state legislatures to follow its lead and enact similar policies. This would be a disaster for campus civil liberties, hugely expanding the authority of administrators to punish students they don’t like (since virtually everyone who has had a romantic encounter has technically run afoul of the standard).

Supporters of affirmative consent clearly have good intentions—in particular, to level a sexual playing field that all-too-often seems to be tilted in favor of exploitative frat boys—but “Yes Means Yes” is simply unworkable, and incompatible with due process of law. At least one wise judge has issued a ruling to this effect. Let’s hope that the academics at ALI pay attention to her reasoning, rather than caving to political pressure from campus activists.

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  • Angel Martin

    of all the things we are supposed to worry about, adjudicating disputes amongst the college promiscuous ranks very low on my list. If colleges go back to the 1950’s, and require all meetings with female students to be chaperoned, it’s fine by me.

    for college males looking for someone decent to marry, skip the fragile princesses of the college dating scene and try the local churches instead.

    • Eurydice

      Let’s go even further than that. How about if every student, male or female or transgender or neuter or whatever, has to wear an electrified chastity belt at all times, the keys to which would be held by a special Dean of Student Sex Life. Students wishing to have sex with each other would have to file and sign consent forms with the Dean, who would then turn off the electricity for some negotiated period of time (let’s say anywhere between 3 minutes to an hour), after which the electricity would be turned on again until another contract is negotiated. I think that should settle the matter.

      • Angel Martin

        One has to be careful with satire here. With the current campus environment, even the most outre policies suggested as a joke have the possibility of becoming real.

        • Eurydice

          Well, that’s the beauty part, as they used to say. This will work even if people take it seriously. The whole process will be so ridiculously and stupidly cumbersome that students will either figure out a more logical way to hook up or they’ll give up on sex altogether and maybe their grades will improve. Plus, for sheer entertainment value, just imagine university development officers trying to raise funds for a Department of Student Sex Life.

  • Jim__L

    Celibacy never looked so good.

    Is it any wonder that lawyers want this to become a new playground for people to need legal representation, or that that sort of mind wants people to fill out forms in triplicate for issues once handled between people as a matter of course?

    An interesting part of Plato’s Republic that has been unfortunately forgotten — Plato, et al, had no patience for litigious people. If you had to keep going to a judge, you had no sense of justice in yourself, and so were deficient as a human being. Would that that attitude were common across this society, life would be so much better for it.

  • Jim__L

    It’s like they’ve completely given up on human relationship being based on love and trust. Sure, this makes sense for the hookup culture, but for literally *any other culture*, this is a comical waste of time and a tragic obstacle between people, and a terrible amount of power to hand to manipulative, passive-aggressive abusers.

    Maybe the evils just have to happen for people to reject this nonsense.

  • FriendlyGoat

    The best way to inform the debate about “yes means yes” as a college standard is to ask a large number of parents of college women some questions:

    1) Do you believe sexual complaints should be investigated by the college your daughter attends?
    2) Do you believe that “yes means yes” should be part of a standard for resolving or adjudicating complaints?
    3) Are you concerned that students may face unreasonable consequences as a result of this process?
    4) Do you think all this is silly and should not be any concern of the institution?

    Having the whole debate just another left-right politicized thing is ridiculous—-especially if it is mostly taking place between activists, lawyers and college bureaucrats. The parents of women either really want this or they don’t. If they do, then the argument can proceed between them and parents of the male students, if any, who oppose.

    • Jim__L

      “If any”?

      You’re joking about that, right?

      No way in hell my sons are going to a school that would call them a “rapist” for failing to ask for permission every single time they wanted to show affection to someone with whom they were in a loving, trusting relationship, or that would allow a woman who decided after a breakup that they wanted to get even by throwing around accusations of “rape” for things even Ken Starr wouldn’t call sex.

      FG, you’re very, very far offbase on this one. “Yes means yes” is a grave violation of due process in theory and unworkable in practice. There is no way to implement it without destroying our justice system.

      Leave rape and assault investigations to the police, and let the rest go.

      • FriendlyGoat

        Why would you call me “off base” for recommending that this debate be informed by a preponderance of actual parents of actual college students speaking in a large (large) poll?

        My first guess is that a majority of the parents of females do not have a huge problem with “yes means yes”. My second guess is that a majority (perhaps a smaller majority) of the parents of males don’t either. OR, maybe not

        But my point is, as far as I have heard, we don’t know what a large (large) group of the parents actually think. Why don’t we find out instead of depending on all the usual political types in the left-right spectrum to slug THIS ONE out? Why, for instance, is this even on TAI?

        I am completely willing to abide (in my own thinking) by what 10,000 sets of parents of students in Ivy League + state universities + religion-affiliated colleges + community colleges might together tell us.

        • Jim__L

          What the Title IX Totalitarians want is to impose this through quasi-legal means, not to allow a “grapevine” to “develop” it.

          Have you even looked at the implementation here? The kangaroo courts? The “guilty until proven innocent” or better still the “guilty despite being proven innocent” nonsense going on in support of those that three-letter-word slogan?

          Slogan-based thinking is beneath you, FG. I really expected better.

          • FriendlyGoat

            You’re having kangaroo courts in middle school? That is, remember, where I suggested the development of a “grapevine” of ethical education on this topic.

          • Jim__L

            OK, we seem to be talking about very different things here. Let’s see if we can figure this out.

            Have you been reading the articles about the implementation of YMY on this site? The ones that cite colleges ignoring the rules of due process by taking every complaint at exactly face value? What do you think of those?

            Giving you the benefit of the doubt, I suspect you’re falling in love with a slogan without looking at what the slogan implies.

          • FriendlyGoat

            I like the slogan actually better than I like the current focus of using it in possible college “investigations”. Yes, I have read some of the articles.
            Yes, there are possibilities of false accusations. And, yes, after a few malicious women are sued silly for trying to wrong some men, and after some colleges are sued silly for going off half-cocked in stupid pursuit of innocent people, all of that will moderate.

            As far as I can tell, the feminists are pushing YMY at the colleges because of the environments there. I happen to think they have stumbled upon a communication tool for moderating young men at much younger ages and I hope it does not just go to waste by “not ever catching on”.

          • Jim__L

            Once I start to see a couple of those lawsuits, I’ll be a lot less inclined to be hostile here.

            At this point, those lawsuits don’t seem to be materializing.

          • FriendlyGoat

            Well maybe we haven’t really seen innocent males railroaded yet.

          • Tom

            Or it just means they’re settling out of court.

          • Jim__L

            Settling out of court is for civil cases, not criminal.

          • Tom

            I’m referring to the lawsuits against the colleges.

          • Jim__L

            Like in the Duke U Lacrosse case?

            Have you been following the news at all?

          • FriendlyGoat

            Duke paid an undisclosed amount in settlement of that, didn’t it?
            Colleges are not going to want to repeat that a lot.

          • Jim__L

            You can’t pay to settle a criminal case.

            Nope, the ones that have made national news have turned out to be frauds. YMY would hand those frauds unbelievable amounts of power. I can’t believe you’re supporting this.

          • FriendlyGoat

            Maybe I’m wrong, but I thought I read that Duke paid a settlement to the players as a result of Duke’s involvement in the case, irrespective of the actions of the criminal prosecutor.

    • Andrew Allison

      Perhaps more useful would be to ask the college women what they think (parents are not directly involved in the implementation of this).

      • Jim__L

        Women aren’t the only ones with rights. That’s the root of the problem in all Title IX thinking.

        Women are demanding the privilege and power to slander (and prosecute on the basis of that slander) any man they decide they don’t like for actions that may have been perfectly welcome at the time… or for actions that may or may not have happened.

        I’m perfectly fine with sex outside of marriage being deprecated, and for husbands treating their wives without love being deprecated. But that’s not what we’re talking about here; we’re talking about how to make a fundamentally reckless behavior (drunken hookup culture) less risky for half of the participants at the expense of the other half.

        This is frankly what happens when something as toxic as drunken hookup culture gets to be the expected “college experience”, instead of seen for the disaster it is.

        • Andrew Allison

          I guess I wasn’t direct enough. I suspect that college women might find “Yes means Yes” to be ridiculous too. Specifically, it’s not clear to me that women are demanding it. Most would probably be happy with No means No!

          • FriendlyGoat

            But both you and I would be correct to ask them before we make assumptions, right. (And dear old Mom and Dad, too, of course.)

        • FriendlyGoat

          Is there some better answer actually happening these days to mitigate the “drunken hookup culture”?

          • Jim__L

            Evenhandedly applying shaming to both men and women, for one.

            Going one-sided worked for centuries… It wasn’t fair, I agree, but the solution is for men to pick up some virtues (allegedly) originally reserved for women, instead of women picking up vices (allegedly) formerly reserved for men.

          • FriendlyGoat

            Well, that’s why I like “yes means yes” as a means of thumping some empathy, judgment and “two-sidedness” (I make up my own words) into us young men’s heads when we’re still young—- like say before high school—- and why I hope this phrase just “goes around” forever even if colleges do not attempt to officially use it much at all.

            You and I have discussed that we need males thinking about the “comprehensive list” of things that can go wrong beyond pregnancies and STDs. Many of those are emotional. When the sixth-grader asks “Why” when confronted with “yes means yes”, the answer from Mom, Dad, counselor, grandparents, siblings etc. —–even in a conversation between girl and boy—-is BECAUSE you can hurt people by manipulating, pushing, goading, tempting people into “doing stuff” at the wrong time. Girls and boys have feelings and memories of youth for a lifetime. Don’t RUSH it. Don’t pressure her. As in, “Dude! She has the duty to tell you yes about anything and everything. If she is not doing that, YOU have the duty to stand down until further notice”. I like it and I think it has great positive possibilities.

      • FriendlyGoat

        I certainly have NO objection to wide polling of female college students on this topic. That also would inform the debate. But let’s not skip the parents, okay? We could certainly do both. Going even further, I think we would be instructed by segregating female college students’ responses by their ages.
        There might be different answers emerging at age 18, 19, 20, 21, 22, 23, 24, 25 and so forth—-and it would be worth knowing what divergence might exist in opinions from different levels of college and life experience..

        • Andrew Allison

          Absolutelys skip the parents whom, not having to deal with the implementation, would be far more protective of their daughters than their daughters might wish..

          • Jim__L

            Parents are aware that young people are making decisions that will not only affect who they are today, but everyone they will ever be for the rest of their lives.

            This is called “perspective”. It’s a very useful thing. And it’s something people don’t have at 18, 19, 20, etc.

            Also, it’s unbecoming of someone of your years to talk so gleefully of the delinquency of young females. One wonders if it’s entirely disinterested.

          • Andrew Allison

            I’m offended by your unwarranted suggestion that I an thinking, gleefully or otherwise, of the delinquency of adult females. I’m simply suggesting that the ladies in question should be consulted. It is you who are making an, insulting to them, assumption of delinquency.

          • Jim__L

            Personal observation withdrawn, with apologies.

            Well-meaning overprotectiveness is not that hard to live with, given a bit of goodwill and independence of spirit. (But I guess that’s the point; at 18, few people are mature enough for
            that sort of thing. There’s a reason that age of majority used to be
            21.)

            Parental involvement is not a bad thing, especially if they’re paying the bills. And if it means helping stop the YMY madness of young brains awash in the third wave, I’m all for it.

          • FriendlyGoat

            Well, many parents feel absolutely skipped over anyway. Maybe this whole issue will just roll past them with no one bothering to get their input. We can just let the hard liberals, the hard conservatives, the campus greek organizations and the bureaucrats come up with something or other and “announce” it to the parents.
            Why not? The folks are probably too dumb to know anything anyhow, right?

  • Fat_Man

    If you are expecting a bunch of law professors to bail out this mess, you will be sadly disappointed. They are all hardcore leftists, and they are down for the struggle. They may clean up some corners of the prose, but they will back the party line until Hitler invades the Soviet Union.

    And while you are at it, don’t expect the courts to be any help. If Hillary wins, she will appoint more wise Latinas to the court, and you can kiss your white privilege (what you call civil liberties) goodby. Of course John Roberts is licking his chops at another chance to declare that “yes means yes” is really a tax.

    I am, however, an optimist. If things get bad enough on college campuses, parents will start pushing their kids to do something else with the money and their time. Keeping kids out of those leftists indoctrination camps is a good thing.

  • Blackbeard

    The point is to make as much as possible against the law. Then the administrative state can decide who to prosecute.

  • Andrew Allison

    I think that TAI hits the nail on the head with ““Yes Means Yes” is simply unworkable, and incompatible with due process of law. Our civil rights are slowly but surely being whittled away by bureaucrats.

  • PierrePendre

    Since most sexual encounters happen privately, making “yes means yes” the standard doesn’t tackle the difficulty of settling a he said/she dispute arising from what transpires. The female retains the possibility of claiming that no consent was given or that it was varied or withdrawn during the transaction. There is really no way to establish the true circumstances of a sexual encounter short of universities stipulating that two accredited observers, one representing the male and the other the female, should be present to supervise everything that takes place and that permission for every action should be requested and responded to and endorsed by the observers viva voce and logged for signature by all the parties afterwards as a true account of the proceedings. But as we know a true account is not at all what feminists and their allies want. Ezra Klein of the Vox blog wrote recently that the rules should be so strict that it would be almost impossible for men to escape conviction. He acknowledged that a lot of men would be wrongly convicted but he thought that was a price worth paying.

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